The Washington PostDemocracy Dies in Darkness

Should the filibuster stay or go? Here’s how to argue about it.

On Jan. 6, President Biden said that “we are in a battle for the soul of America” in a speech marking the one-year anniversary of the violent Capitol mob. (Video: Blair Guild/The Washington Post)
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After years of skepticism, President Biden is forcefully calling for Democrats to erode the Senate filibuster so they can pass voting rights legislation. He is giving a speech in Georgia before a planned Senate vote on voting bills, framing the decision for Democrats weaken the filibuster to pass these bills as essentially life-or-death for democracy: “The next few days, when these bills come to a vote,” he plans to say, “will mark a turning point in this nation. Will we choose democracy over autocracy, light over shadow, justice over injustice?”

The speech is aimed squarely persuading Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), among other Democratic senators. Both have explicitly opposed changes to the filibuster, though Manchin has expressed a tiny bit of willingness to revisit it.

As Democrats’ internal debate on what to do heats up, what are the arguments for and against keeping the filibuster? First, the arguments in favor of keeping the filibuster.

Why it should stay as is: The filibuster protects American democracy

The filibuster is a centuries-old tool that allows the minority party to block legislation even though it doesn’t have a majority of votes in the Senate. Its existence is a central difference between the House and the Senate. In the House, whichever party has the majority can do pretty much whatever it wants. In the Senate, you have to find consensus, since controversial legislation often requires 60 votes to pass, and rarely does one party have 60 out of 100 senators.

Consensus, the Founding Fathers surmised, is a good thing for democracy.

This is why Manchin urges caution about busting the filibuster. “The Founding Fathers understood that the challenges facing a rural or small state would always be very different from a more populous state,” he wrote in an op-ed last year. Some Senate Democrats privately agree with him on this front.

Why the filibuster should stay as is: Eroding it could come back to bite Democrats

Republicans are now this close to making abortion illegal in many states, and their success can be traced back to getting rid of the minority party’s filibuster to block Supreme Court picks.

A few years ago, Democrats got rid of the filibuster for most presidential nominees. Republicans then took over the Senate majority and got rid of the filibuster for Supreme Court nominees. Then, under Trump, they molded the Supreme Court into the most conservative it has been in decades.

Sinema warns that if just 51 Senate votes can expand voting rights, 51 Senate votes when the Republicans next have control can make things worse, from Democrats’ perspective.

She wrote in a June op-ed: “To those who want to eliminate the legislative filibuster to pass the For the People Act (voting-rights legislation I support and have co-sponsored), I would ask: Would it be good for our country if we did, only to see that legislation rescinded a few years from now and replaced by a nationwide voter-ID law or restrictions on voting by mail in federal elections, over the objections of the minority?”

What is the filibuster?

Why it should go: If not for voting rights, then what?

Democrats and voting rights activists see Republican voting restrictions on key states as part of a larger effort to subvert the will of American voters based on the lie that Trump won the 2020 election. Democrats’ legislation to expand mail voting, make Election Day a holiday and curb partisan gerrymandering is their response.

And the 2022 midterms are nearing.

“Our democracy is clearly imperiled. The lights are flashing and we are irresponsible if we don’t respond,” said Sen. Raphael G. Warnock (D-Ga.), a leading advocate for these voting rights changes.

“If forced to choose between a Senate rule and democracy itself,” wrote Sen. Angus King (I-Maine) last year, “I know where I will come down.”

Biden is picking up this line of argument as leans into advocating more for this voting rights legislation: “This is one of those defining moments,” Biden told reporters Tuesday. “It really is. People are going to be judged where were they before and where they after the vote.”

Why it should go: The filibuster is actually a blockade to democracy

In December, Democrats were struggling for the second time in two months to raise the debt ceiling to avoid a U.S. default and financial calamity. Republicans were using the filibuster to block this — even though most of them wanted to see the debt ceiling raised, too.

So Democrats made a deal with Republicans to allow a one-time exception to the filibuster to raise it. The process underscored for some Democrats that in these hyper-partisan times, the filibuster more often than not is a blockade to good governance.

“If we can change the process on the debt ceiling,” said Sen. John Hickenlooper (D-Colo.), “then surely we can do the same to protect our democracy.”

“We must adapt,” Schumer said in a recent letter to his colleagues. “The Senate must evolve, like it has many times before.”

And former president Barack Obama has tried to recast the filibuster as a racist tool. During the 2020 campaign, he cited its use to block civil rights legislation in the 1960s and called the filibuster “another Jim Crow relic.”

This has been updated with the latest news.

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