And Sen. Mitch McConnell (R-Ky.) knows it.
That’s why the minority leader recently took to the floor of the United States Senate and warned Democrats that if they move to alter the filibuster, Republicans will grind the business of the Senate to a halt and unleash a torrent of noxious legislation the next time they are in the majority — everything from “nationwide right to work” laws to “sweeping new protections for conscience and the right to life.” (That’s Republican-speak for discriminating against LGBTQ people and placing even more restrictions on reproductive health).
A key argument for preserving the filibuster usually boils down to the question, “What happens when the shoe is on the other foot?” It goes something like this: Democrats abolish the filibuster once and for all at some point this year, and the next time Republicans have full control of government, the “backstop” of the Senate will no longer prevent them from enacting their dangerous legislative agenda. Sen. Dianne Feinstein (D-Calif.) has said as much in recent days.
This anxiety-provoking “what if” paralyzes Democrats in a way that’s without parallel in our politics, though it’s a concern that never seems to visit itself upon Republicans. This is especially surprising since the core components of the GOP’s agenda — cutting taxes for wealthy people, allowing corporations to go unregulated, privatizing the social safety net — are all generally very unpopular.
This fear has produced at least two staunch on-the-record filibuster defenders on the ostensible left: Sen. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.). In the latter’s case, that position even takes the form of a strange fidelity to 60-vote thresholds for all Senate business that has no constitutional basis. Add to that the whispers Democratic Senate staffers often hear of what Republicans might specifically do to abortion rights without the threat of the filibuster, and you get our current state. It’s almost as if many Senate Democrats cannot imagine what a filibuster-free U.S. Senate would look like — never mind that most state senates do not provide the minority party an effective veto over the majority, and they seem to have figured out this whole governing thing just fine.
One might generously assume that the fear persists because Democrats know their coalition of minorities, women and individuals who are often found in the margins of society is particularly vulnerable to the excesses of Republican overreach. In a way, this instinct to protect is noble.
But it also shirks the responsibility to be proactive.
When I arrived at the Senate as a staffer, I was sympathetic to the veil of protection the filibuster appears to provide. As a Black gay man from rural Georgia who has lived the oppressive reality of discriminatory Republican laws passed in the name of “religious liberty,” I, too, allowed fear of the worst to temper my desire for better. But over time, the realization sets in that the Republican playbook feeds on that very fear, and it locks Democrats in a perpetual cycle of not realizing the widespread support many of their core issues — protecting reproductive health, raising the minimum wage, taxing the wealthy — enjoy.
This fear also allows Democrats to ignore extremely recent history about unified GOP control of Washington.
From 2017 to 2019, the GOP commanded majorities in the House and Senate and controlled the White House. The few major initiatives they secured — the Tax Cuts and Jobs Act, opening the Arctic National Wildlife Refuge to exploration, confirming two Supreme Court justices — happened on a majority-rule basis. When they tried to knock millions of people off their health insurance, they failed because they couldn’t even cobble together enough Republican votes to do that.
The result? Democrats overcame deeply entrenched gerrymandering to retake the House, and flipped two Senate seats on a decidedly unforgiving map that cycle.
This is not just happenstance. History has shown that progressive reforms are hard to undo once they are enacted. Regardless of whether they say they like big government, people of all political stripes seem to appreciate the things the federal government provides them. Progressive expansions of rights and the social safety net have proved resistant to repeal through the legislative process, as we saw with Obamacare; the law was consistently more unpopular than not until Republicans tried to take it away, and people realized they loved it.
History also shows us that by its very nature, the filibuster benefits conservatives far more than progressives. It is an inherently conservative tool: It makes it harder to achieve change. Conservatives can get most of what they want simply by blocking progress, and they can achieve many of the rollbacks of rights and regulations that they seek through the courts and other means. Progressives, on the other hand, require large-scale legislation to achieve their goals. During the Jim Crow era, the filibuster was used to block civil rights. But in more recent eras, it has continued to benefit conservative causes far more than liberal ones. According to a recent report by the Center for American Progress, the filibuster has been used twice as frequently by Republicans to block Democratic legislation as vice versa.
Given all of this, timorous Senate Democrats would do well to recognize that much of what they fear is already happening in state legislatures across the country. Voting rights are being eviscerated. Reproductive health care is under siege. Twenty-seven states have right-to-work laws on the books. Deregulatory drunkenness left millions of Texans without power and clean water for days just last month.
An activist federal legislature is the only true remedy to all of this, and the filibuster stands in the way. The bad stuff is underway, and it’s only going to get worse unless decisive action is taken.
Senate Democrats have a clear choice here, and it’s bigger than any one or two members of their caucus boasting about their love for an arbitrary procedural hurdle with no actual connection to the Senate’s design. If President Biden decides he wants to sidestep the filibuster, Sinema and Manchin (along with any other stragglers) risk becoming pariahs, rendering their current objections irrelevant. Even the most fearful Democrats have an opportunity to embrace the many tenets of their popular agenda and trust that the voters will reward them for governing with the courage of their convictions. They can campaign on offense and paint the Republican agenda for what it is: an inept regurgitation of the Gilded Age.
Or they can let fear win the day and watch for the foreseeable future as Republicans dismantle society brick by brick. Fear is a powerful motivator, but it cannot be an excuse. For the good of the country, I hope Senate Democrats will choose wisely.