With Republicans taking over the White House next year and maintaining control over both houses of Congress, observers have warned that if Senate Democrats overuse the one tool at their disposal to block the GOP’s agenda — the filibuster — it will be taken away from them. “The Democrats will have some limited ability to affect what happens” to the filibuster, writes political scientist Jonathan Bernstein. But “if they blockade the Supreme Court vacancy” left this year by the late Antonin Scalia, “Republicans would rapidly end the filibuster for those nominations.” In The Washington Post, the Brookings Institution’s Sarah Binder cautions that Democratic obstruction could put the filibuster at risk.
True. But the filibuster’s demise would be a feature, not a bug. After Donald Trump is inaugurated, Senate Democrats should filibuster with abandon. They have nothing to lose but the filibuster itself, and that would be a good thing for American democracy.
Use of the filibuster would help Democrats as they try to protect civil rights, economic justice and environmental safeguards against President-elect Trump’s legislative agenda. At the same time, Republicans’ response would underscore Trump’s divisiveness in the eyes of the swing voters whom Democrats need in future elections.
Let’s look back: In 2009 and 2010, Republicans found themselves in the same situation Democrats do today, but with fewer senators. (Then, the GOP had 41 Senate seats after Scott Brown won Massachusetts’s special election. Now, Democrats have 48, or 49 if they win Louisiana’s runoff.) Republicans had also been roundly rejected at the ballot box in 2006 and 2008, whereas Democrats actually won more votes for the presidency and Senate this year.
Nonetheless, Republicans stonewalled Democrats. An individual mandate to buy health insurance is a market-friendly intervention that drew past support from Republicans, but Senate Republicans voted as one to filibuster the Affordable Care Act and President Obama’s other signature proposals, such as the stimulus spending bill. They filibustered at twice the rate that Democrats did during George W. Bush’s first two years. Republicans even adopted the habit of filibustering routine business and noncontroversial appointments.
As a result, bills that couldn’t garner 60 votes, like cap-and-trade legislation to reduce carbon emissions, never made it to the senate floor for an up-or-down vote. Agencies were hamstrung by having to go without top political appointees for months or even years. The federal judiciary became overburdened due to its glut of vacancies. Republicans were able to grind Obama’s agenda to a near standstill. So why shouldn’t Democrats take the same approach now?
The Obama era demonstrated that there’s no political cost to obstructionism. Rather, the obstructionist party benefits: Initiatives such as cap-and-trade failed, while others such as the stimulus or Obamacare were scaled down to keep conservative Democrats on board. That, in turn, made Obama look partisan and ineffectual. It meant that the economy recovered more slowly than it would have if there had been a larger stimulus. That was Republicans’ fault, but it hurt Democrats.
In the 2010, Democratic voters disappointed by the list of legislative setbacks punished their party by staying home, while a Republican base convinced they were making the last stand against full-blown socialism handed the GOP a midterm sweep. In 2016, leftists and millennials registered their disappointment at the culmination of Obama’s presidency by abandoning Hillary Clinton for third-party candidates, or not voting, even though it was GOP control of Congress that had actually prevented more progress from being made than control of the White House. Self-identified independents and late-deciders sided with the party not currently in the White House, even though that party bore far more responsible for rising inequality and petty squabbling in Washington.
Effective use of the filibuster isn’t particular to the Obama years. During George W. Bush’s presidency, Democrats suffered when they compromised with the GOP and succeeded when they stymied Republican proposals. Early in Bush’s tenure, several senate Democrats went along with Republicans on tax cuts, stalwart liberal Sen. Ted Kennedy helped secure passage of No Child Left Behind and many Democrats backed the Iraq War. Defying the historical norm for the first midterm of a presidency, in 2002, Democrats lost senate seats to Bush’s party. But things changed in 2005, when Democrats united in their pledge to filibuster Bush’s push for Social Security privatization. Bush’s privatization scheme died and his approval ratings continued their downward slide, culminating in Democratic gains in 2006 and 2008.
It’s time for Democrats to learn the lessons of the last two presidencies and replicate the Republicans’ recent success. As Jonathan Chait argues, “The single accountability mechanism through which the public makes its political choices is the president. If the president is seen as succeeding, voters will reward his party. If he is seen as failing, they will punish it. Presidential approval is so dominant it drives voting in state legislative races. Scholars have found that cooperation from Congress sends a signal that the president is succeeding, and conflict sends a signal of failure.” Thus, Democrats’ fate is inextricably tied to Trump’s. For them to succeed, Trump must fail.
Democrats should filibuster anyone Trump nominates to the Supreme Court seat that was, by any reasonable read, Obama’s to fill. They can’t filibuster most other presidential appointments because of their own filibuster rules reform from 2013. But they can filibuster extremist legislation, such as House Speaker Paul Ryan’s proposals to turn Medicaid into a collection of block grants to the states or Trump’s proposal to use federal funds for private school vouchers.
They should also filibuster legislation widely seen as having more moderate appeal, like Trump’s infrastructure spending proposal. That’s partly because Trump’s infrastructure plan is actually an inefficient tax cut that will fatten the bottom lines of investors in oil pipelines rather than rebuilding decaying city streets, sewers and transit systems. And because they should resist the temptation to sign on to something that helps Trump look effective or bipartisan, just as Republicans filibustered Obama’s 2011 infrastructure investment proposal.
It’s true that if Democrats make frequent use of the filibuster, Republicans might deploy the “nuclear option” and scrap it altogether.
But nuking the filibuster is already inevitable thanks to Republicans’ unprecedented use of it. As Kevin Drum put it in Mother Jones, “anything more controversial than renaming a post office has required 60 votes during the entire Obama presidency.” Republicans even pledged to filibuster any D.C. Circuit Court nominee solely to keep Obama from filling seats on the bench. That’s what prompted Democrats to do away with the filibuster for judicial branch nominations other than the Supreme Court.
And if Democrats allow the filibuster to survive the Trump years, you can be sure that Republicans will filibuster even more aggressively the next time they’re out of the White House and in the minority in both houses of Congress. Given the stark partisanship that’s now the norm on Capitol Hill, any reboot of the Democratic agenda — a carbon tax, for instance — will only proceed if the rules allow for legislation to be passed with a simple, and not a filibuster-proof, majority. The filibuster’s days are numbered, so if Democrats give Republicans the incentive to eliminate it now, it’s only speeding things up.
The country will be better off without this anti-democratic choke point anyway. The filibuster is good for Democrats at times like this, and like any sensible political actor they should use the tools at their disposal rather than preemptively surrender. But it’s bad for the country if voters elect one party to total control of the government and yet that party cannot enact its agenda.
Because of the filibuster, our system lacks democratic accountability, one cause of the inchoate frustration that drove voters to Trump. For better or worse, voters should get what they voted for. And in the long run, that might even benefit liberals: Just look at a country with a parliamentary system like Great Britain, where one election puts a party in power to do whatever it wants. Britain has universal health insurance, and though conservatives presently control government, they don’t dare call for its repeal. The reason is similar to the reason Republicans have discovered that straightforward elimination of Social Security and Medicare is a nonstarter in American politics. (Their privatization plans are efforts to get rid of the programs in two steps to minimize the outcry against it.) Once the safety net is expanded, it’s much harder to contract. (Political scientists call this phenomenon “liberal entrenchment.”) But if British voters ever did elect a government that expressed its intent to privatize their health coverage, they’d likely get what they voted for, as they should. If a party elected gets to enact the agenda it campaigned on, voters have a fair chance to see whether they like the result.
As long as they’ve got the filibuster, Democrats should do everything in their power to save voters from themselves — and the GOP’s regressive agenda — rather than putting a bipartisan patina on whatever comes from Congress and the Trump administration. But if Republicans do away with the filibuster and ram their whole platform through, so be it. If voters don’t like expanding deficits, reduced benefits and smog, perhaps they’ll draw the appropriate conclusion and vote accordingly next time.