10 Reasons Why Progressives Should Support Senate Filibuster Reform and Not Abolition
We should all be concerned about the state of our democracy in this country. Authoritarianism is on the rise at home and abroad. Civility is gone. Compromise is a lost art. Division is high. We can’t even seem to agree on or accept basic facts and science.
A national focus on how our republic operates and how we can best come together as a country is desperately needed. Efforts to eliminate foreign interference in our elections, embrace inclusion and diversity throughout society, take much needed steps to address race and gender equity, expand and protect voting rights, eliminate gerrymandering, abolish the antiquated Electoral College, listen to and address the needs of children and youth in our society, and other reforms to address threats by authoritarianism and nationalism here and abroad are all worthwhile and critically important to protecting and improving our fragile democracy.
Laws, systems, processes, structures, checks and balances, precedents, and norms are all critical to the function of our democracy. We must keep what is working, change what is not, and strive to make it better.
As former Vice President Hubert Humphrey said:
It is not enough to merely defend democracy. To defend it may be to lose it; to extend it is to strengthen it. Democracy is not property; it is an idea.
But we also must be careful in what we do, as the lessons in history and across the world at this very moment (e.g., Russia, Turkey, Venezuela, Poland, Sri Lanka, and the Philippines) show us that democracies are fragile.
Martin Luther King, Jr. teaches us that the “arc of the moral universal is long, but it bends toward justice.” Each of us striving for social justice can achieve more working together than apart.
But our push for urgency does not mean that we should be imprudent and reckless. Policy and system change requires careful attention to the potential for unintended consequences from “solutions” that may cause more harm than good. Systems or processes can be reformed or abolished, but we should carefully consider the pros and cons of both.
We must also recognize that our government was set up as a republic with a number of checks and balances. Whether these measures to limit the power of government and our political leaders were set up via the Constitution, laws, rules, norms, or precedent, we must understand that they are purposeful and intended to serve as limitations on political leaders and dominant factions in our society in order to check their power and control. To our political leaders and many advocates, these checks on power slow progress and can be both inconvenient and annoying. But to our democracy, they serve as important protections.
Consequently, the push by some on the political left to completely abolish the Senate filibuster and its check on political power would likely, in the long term, cause more harm than good.
One might think that Democrats would have learned from having eviscerated the filibuster for judicial nominations. In 2013, they used a parliamentary slight of hand that we now call the nuclear option to sweep away the 60-vote requirement. If they are honest, Democrats will admit that has been a terrible disaster. McConnell has fast-tracked 200 federal judges through the confirmation process, including 53 in the powerful circuit courts.
Without the Senate filibuster, Brett Kavanaugh was confirmed to the Supreme Court and hundreds of judges have been fast-tracked to the federal judiciary under a process where the Senate power of advice and consent, careful consideration and review of the evidence, full hearings, and floor debate has been shattered and only a hurried review and simple majority is now necessary.
Many progressives are rightfully concerned with what is happening to the judiciary since the “nuclear option” was invoked by the Democrats for the confirmation of federal judges back in 2013 and extended to the Supreme Court and executive branch appointments by Republicans in 2017. Our federal courts are being polarized.
President Trump and Senate Republicans have taken full advantage of it, and today, Sen. Joe Biden’s words back in May 2005 have proven to be prophetic:
Mark my words, what is at stake here is not the politics of 2005, but the Federal Judiciary in the country in the year 2025. My friends and colleagues, the nuclear option is not an isolated instance. It is part of a broader plan to pack the court with fundamentalist judges and to cower existing conservative judges to toe the extreme party line.
When a house is on fire, it makes little sense to fan the flames. And yet, filibuster abolitionists seemingly want to double down.
Instead, we should learn lessons from that change and be a little more cautious about the long-term consequences that abolishing the filibuster would have on legislative issues. As Sen. Biden warned:
Getting rid of the filibuster has long-term consequences. If there is one thing I have learned in my years here, once you change the rules and surrender the Senate’s institutional power, you never get it back.
To repeat: “you never get it back.”
Reform Rather Than Abolish
Do not misinterpret what I am saying: the operation of the Senate, including the filibuster, needs significant reform. But, be careful what you ask for and do. When it comes to judicial and executive branch appointments, that lesson should have been learned.
In addition to people like Kavanaugh on the Supreme Court, we have Betsy DeVos, Bill Barr, Mike Pompeo, and Andrew Wheeler running critically important federal departments. Abolishing the filibuster for judicial and executive branch appointees has been the equivalent to taking a drug whose side effects are sometimes worse than the illness. If it is done for the passage of legislation too, we may all live to regret it.
Here are 10 reasons why the drive to abolish the Senate filibuster by progressives is ill-advised and will likely backfire.
Reason #1: The Tyranny of the Majority
“Whenever you find yourself on the side of the majority, it is time to reform (or pause and reflect).” — Mark Twain, 1904
In a democracy, there is rightfully a call for majority rule, but it should not be limitless.
Centuries ago, Herbert Spencer explained why the “notion that majorities are omnipotent” is false. As Spencer wrote:
Suppose, for the sake of argument, that, struck by some Malthusian panic (i.e., concern that population growth will exceed food supply or other resources), a legislature duly representing public opinion were to enact that all children born during the next ten years should be drowned. Does anyone think such an enactment would be warrantable? If not, there is evidently a limit to the power of a majority.
With respect to our own country’s history, progressives should need no reminders as to why we should be greatly concerned by what John Adams and Alexis de Tocqueville referred to as the “tyranny of the majority.”
In 1793, John Adams warned:
Mankind will in time discover, that unbridled majorities are as tyrannical and cruel as unlimited despots.
John Adams recognized that history often repeats itself and urged that limitation had to be placed upon unbridled majorities. Even with some limitations, our nation’s history is still full of injustice when it comes to civil rights, voting rights, gender equality, religion, and immigration where the majority imposed grave harm by institutionalizing slavery, discriminating based on race, gender, disability, religion, sexual orientation, age, and immigration status, enacting Jim Crow era laws, establishing internment camps during World War II, capitulating to McCarthyism, and enacting other limitations on people’s fundamental rights.
To create protections for individuals and minority groups from legislative majorities (“mob rule”) and presidential actions (“tyranny”), the founders created the Constitution and its important amendments (e.g., freedom of speech, freedom of religion, due process, and suffrage rights), an independent judiciary, federalism, and other systems of checks and balances, laws, rules, norms, and precedents. These are all intended to serve as safeguards against the tyranny of both the legislative majority and the presidency.
Again, to quote Adams:
. . .the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of history. . . .
The push by filibuster abolitionists is embedded in the belief that the majority should prevail unimpeded. They rightfully point out that the filibuster has been used for terrible things, such as to prevent progress on civil rights, as Barack Obama rightfully noted.
But progressive must also recognize that it was “the majority” who put in place slavery, Jim Crow, internment camps, and McCarthyism.
Author Ta-Nehisi Coats expressed concern about the “tyranny of the majority” in an article entitled “Tocqueville and the Tyrannical Majority” in The Atlantic. Coates writes:
What is unavoidable is that in America white supremacy has often been quite democratic. Tocqueville calls this sort of tyranny much worse because it bears the imprint of the “majority” and thus is imbued with a kind of moral justice.
. . .knowing how often the “majority” can embrace the immoral (not be “tricked” into the immoral but embrace it of its own volition and interests) gives me pause. It checks the instinct to believe in the immediate wisdom of majorities, or the sense that the right solution can always be found in a crowd.
Protections, checks, and caution are needed in our democracy.
In support of the new republic, founders James Madison, Alexander Hamilton, and John Jay authored a collection of 85 columns and essays called the Federalist Papers to urge the adoption of the U.S. Constitution. Madison wrote in Federalist #51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. . .
Thus, in drafting the U.S. Constitution, the founders spent a great deal of thought and time working on ways to protect the rights and liberties of individuals and the minority against abuse and tyranny of the majority. As James Madison said on the floor of the Constitutional Convention in 1787:
All civilized societies would be divided into different sects, factions, and interests, as they happened to consist of rich and poor, debtors and creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious sect or that religious sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.
Unfortunately, even the checks and balances that they established have often not been enough. Majorities have proven to threaten basic human rights on many occasions. For example, after the Civil War and adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution that ended slavery, established due process and equal protections rights, and universal male suffrage, Southern politicians passed Jim Crow laws to put Black citizens into indentured servitude, take away voting rights, impose segregation, control and deny work and educational opportunities, and seize children for labor purposes. Alabama State Legislator Anthony Sayre proclaimed his legislation would “eliminate the Negro from politics, and in a perfectly legal way.”
This argues for additional protections, checks, and balances rather than fewer. Progressives should, at the very least, heed the words of Twain and give significant pause and reflection upon the concept that trampling on the voices and interests of the minority in the Senate is best for progressive causes.
History tells us, quite often, that it is not.
Reason #2: The Role of the Senate as a Check on the House and Corruption
The founders specifically designed the Senate to play a critically important role in a system of “checks and balances” in the new republic. First, it was created to serve as a check on the House of Representatives, public passions, and “mob rule” by dividing the legislative branch into two independent bodies. In addition to reducing the threat of “tyranny of the majority,” the division of the legislative branch was intended to diminish the possibility of abuse and corruption.
Since men are not angles and greed, power, and corruption exist, the founders pushed a unique system of checks and balanced that lessen the opportunity for abuse. In Federalist #62, Madison explains that the Senate was created, in part, “as a second branch of the legislative assembly” to be a “salutary check on the government.”
It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.
The founders believed that men were not angles and that power inherently corrupts. However, if power is divided with two separate legislative bodies and separate executive and judicial branches, corruption is less possible.
As an example, in March 2019, Treasury Secretary Steve Mnuchin proposed a $500 billion fund in which he would have full control to respond to the coronavirus pandemic and economic recession in order to support various corporate and business interests. If this had happening in 2017 when Republicans controlled the White House and both legislative bodies, it likely would have sailed through the House.
However, the idea was dead on arrival in the Senate due to the filibuster. The White House and Senate Republicans had no choice but to listen to and address concerns from Senate Democrats, who argued for “protections related to workers, such as ensuring their job security and health care, pensions, and 401(k) contributions, as well as prohibitions on discharging their collective bargaining agreements” and against unlimited control by the Trump Administration over such a vast sum of money. Sen. Elizabeth Warren’s expressed opposition because the proposal would “be great for giant corporations but leave everyone else behind.”
Sen. Warren added:
We’re not here to create a slush fund for Donald Trump and his family, or a slush fund for the Treasury Department to be able to hand out to their friends.
Sen. Warren was right to be deeply concerned. In the book How Democracies Die, the authors show how the process of using the government to reward friends and punish enemies is one of the ways that President Vladimir Putin consolidated power and squelched opposition in Russia (that and poisoning opposition leaders).
The U.S. is not Russia, but we should be extraordinarily cautious about ways our democracy could be undermined. As such, we should avoid situations whereby the House and Senate could grant the majority party the ability to control and spend half a trillion dollars as they wish, particularly during an election year.
We should also learn from and avoid disturbing actions taken in states like North Carolina, Wisconsin, and Michigan to undermine democracy through the use of gerrymandering, voter suppression, and lame duck power grabs.
Fortunately, the U.S. Senate filibuster significantly reduces the opportunity for abusing the tools of government in this manner.
Reason #3: The Role of the Senate as a Check on an “Overreaching Chief Executive”
The founders were also concerned about power concentrated in the executive branch. They created checks and balances by giving the Senate “advice and consent” power over the confirmation of executive and judicial branch appointments, ratification of treaties, and impeachment. The Senate filibuster also serves this purpose.
In a Senate floor speech by Sen. Edward Kennedy (D-MA) against eliminating the filibuster on judiciary appointments in 2005, he explained how the Senate serves as an important check on the executive branch:
The Senate was meant to check an overreaching Executive — or an overreaching House as well, and to resist the fads of public opinion. Over the centuries, we have repeatedly played this balancing and stabilizing role, especially when the independence of the judiciary was threatened by an overreaching Chief Executive.
This should be particularly relevant to progressives at this moment. In How Democracies Die, authors Steven Levitsky and Daniel Ziblatt explain the need to check executive power:
Institutions alone are not enough to rein in elected autocrats. Constitutions must be defended — by political parties and organized citizens but also by democratic norms. Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Institutions become political weapons, wielded forcefully by those who control them against those who do not.
This is how elected autocrats subvert democracy — packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents.
Beyond Trump’s authoritarian tendencies, progressives must not dismiss the vast and extreme policy and political agenda that Trump was putting forth in the initial days of the Administration that might have been pushed into law when Republicans controlled the White House, the Senate, and the House in 2017 and 2018, if not for the Senate filibuster.
Trump’s President Advisory Commission on Election Integrity (also known as the Voter Fraud Commission) was establishing in the early days with the intent of justifying voter ID requirements and voter purges. According to Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights, “The commission’s entire purpose was to legitimize voter suppression.”
Many Democratic secretaries of state had said they believed the commission had a goal of laying the groundwork for restrictions that will mostly make it harder for traditional Democratic constituencies — minorities, young people and the poor — to cast ballots. . . .
If so, the intent was to tilt the playing field against the opposition.
The Trump Administration also went on an offensive against immigrants. First, the President attempted to impose a ban on Muslims from entering the country and sought to withhold funding from “sanctuary cities.” This was followed with a “zero tolerance” policy toward immigrants that led to policies of family separation, the placement of children in detention centers or cages, and later, an effort to deny asylum claims by refugees.
Trump had to resort to executive orders and the use of administrative rules to push this agenda because he had no change of getting his anti-immigrant agenda past a Senate filibuster. Fortunately, Trump also faced legal challenges that frequently checked his administrative powers as federal judges ruled the Administration’s actions violated the law on a number of occasions.
With respect to the Muslim travel ban, this type of attack on a religious group is exactly the kind of action that Madison cautioned against and sought limits on governmental power.
Fortunately, President Trump could not easily achieve his agenda precisely because of the checks and balances on executive power by the Senate and specifically, the Ninth Circuit of Appeals in the judicial branch, which blocked all three actions. Trump made his disapproval clear, but that is precisely the point of checks and balances, particularly on authoritarian leaders.
In response, Trump said he would like to “break up the Ninth Circuit,” but again, he could not proceed without support from the Democratic minority in the Senate. Thus, one check on presidential power (the judiciary) ended up being protected by another check (the Senate).
In sharp contrast, without the Senate filibuster, aspects of the Trump’s immigration agenda, which was formulated by white nationalist supporter and White House aide Stephen Miller, might have been proposed, passed, and signed into law in a matter of days or even hours. Among the xenophobic measures denied Senate action and were subsequently blocked or limited by the judiciary to some extent included efforts to eliminate all protections for DREAMers by repealing Deferred Action for Childhood Arrivals (DACA) and putting their lives in limbo and putting them back under threat of deportation to countries they do not know or remember, separate families, cage children without basic protections, deny children in custody immunizations against the flu and other communicable diseases, force children (including babies and toddlers) to testify in immigration court without legal assistance, threaten to deport family members of children with life-threatening illnesses, deport Temporary Protective Status (TPS) parents of children who have lived here their whole lives, build a wasteful and divisive border wall, and end birthright citizenship, which is guaranteed in the 14th Amendment in the U.S. Constitution.
Checks and balances were critically important but not entirely successful. Trump was still able to use the executive branch to enact a number of changes, particularly to the asylum system, that have been terribly harmful. Omar Jadwat, the director of the Immigrants’ Rights Project at the American Civil Liberties Union, said:
The Trump administration, unilaterally, without passing laws in Congress, has radically reshaped immigration in the United States. They have effectively shut down the asylum system at the border. They’ve reintroduced religious, racial and national origin discrimination into our immigration system. These are real, radical shifts.
This has been terrible, but it could have been immeasurably worse. Filibuster abolitionists should not try to dismiss how much worse it could have been. Fortunately, none of this was passed into law and it can all be undone by a future Administration through administrative action.
Trump’s domestic agenda also included attacks on the environment, the block granting of Medicaid and food stamps, closing and privatizing public schools, gutting gun safety laws, condemning freedom of the press, defunding Planned Parenthood, restricting access to reproductive health care, stripping of LQBTQ protections, etc.
Arenberg points out that without the Senate filibuster:
. . .Democrats and Republicans alike should think about the list of “horribles” which the opposing party might enact, including the specter of one-party control of the entire federal budget.
With regard to health care, Trump sought to abolish Obamacare and pre-existing conditions protections for millions of people. Despite having campaigned on a promise not to cut Medicaid, Trump’s budget included more than $1 trillion in cuts to Medicaid and Children’s Health Insurance Program (CHIP) over 10 years. Medicaid, which was passed into law in 1965 and took decades to build, might have been abolished, slashed, or block granted if Trump had his way.
In the future, even Social Security and Medicare could be endangered. In fact, in recent weeks, President Trump committed to permanently cut the payroll tax, which helps fund both programs, in a second term.
In response, filibuster abolitionists attempt to dismiss such concerns because, they argue, senior citizens would likely mobilize to successfully defeat such efforts. And yet, history tells us that significant threats to both programs have been prevented in the past, in part, due to the Senate filibuster. For example, Senate Democrats successfully threatened the Senate filibuster to block President Bush’s proposal to privatize Social Security back in 2005.
This matters for the future of both programs. Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare points out:
Privatization is not a plan to save Social Security. It is a plan to dismantle Social Security. . . If the GOP were to once again find itself in control of both houses of Congress and the White House after the 2018 elections, privatization may snake its way into the forefront of the Republican agenda.
Meanwhile, on the other end of the age spectrum, children would have little to no tools within their power to mobilize, and that would have been an enormous problem during the first two years of the Trump Administration. In fact, Washington Post columnist Catherine Rampell referred to the Adminstration’s policies as a “War on Children. . .being waged by the Trump administration and other right-wing public officials, regardless of any claimed ‘family values.’”
Beyond the $1.5 billion in proposed cuts to Medicaid and CHIP, Trump’s FY 2018 budget called for more than $20 billion in overall cuts to children’s programs and the elimination of more than 44 programs of importance to kids.
Again, without the Senate filibuster, significant aspects of that agenda could have been adopted without real consideration, debate, or the opportunity to offer amendments to protect the needs of children. For instance, Betsy DeVos’s radical school privatization agenda could only have been stopped if some Republicans objected, as Democrats opinions or concerns would have been irrelevant.
Women should also be deeply concerned. Among other things, Trump supported the elimination of federal funding to Planned Parenthood. Former GOP presidential candidate Gov. Scott Walker (R-WI) pushed for this and for bypassing the Senate filibuster when he argued:
Why can’t we defund [Planned Parenthood] — put it in a spending bill. Forget about the 60-vote rule, there’s no reason — and the Constitution doesn’t call for 60 votes… Pass it with 51 votes, put it on the desk of the president.
Fortunately, Trump’s budget proposal was dead on arrival in the Senate because he could not obtain Democratic support for it. Again, this cannot be understated or easily dismissed. Without the filibuster, Arenberg explains:
The federal budget. . .would be completely controlled by the majority without meaningful minority input.
Recognizing these concerns, filibuster abolitionists attempt to minimize and dismiss any worries by arguing that Senate Republicans were divided on Trump’s agenda and wouldn’t have had the votes to pass much of it with a simple majority. Frankly, they do not know that. It is a tremendous leap of faith. There is little evidence that Senate Republicans would have stood up to the President and opposed much of his legislative agenda.
But here are things we do know. Just this week, the Republican Party acknowledged it is pretty much controlled by Trump.
We also know an unrestrained Trump’s agenda would likely have been far worse for progressives than could be imagined because many proposals that might have received congressional consideration were never even brought to the Senate floor and others were not even introduced because of the recognition that they would be unable to overcome a Senate filibuster. It is why Trump called for abolishing the Senate filibuster in order to “pass tough laws.”
The fact is, without the Senate filibuster, Trump would have been handed enormous power to clear far more of his agenda completely unchecked, despite having lost the popular vote by over 3 million votes. The Trump, Steve Bannon, Stephen Miller, Jeff Sessions, and Betsy DeVos agenda might have radically overturned decades of public policy. Filibuster abolitionists do a major disservice to the conversation by attempting to dismiss the enormity of what might have happened then or when a future authoritarian president might be elected.
This Administration has, from its inception, sought to expand the scope of its powers. In testimony before the House Judiciary Committee, former Deputy Attorney General under George H.W. Bush, Donald B. Ayer testified:
. . .Attorney General [Bill] Barr is a major threat to our legal system and to public trust in it. That is because he does not believe in its central tenet — that no person is above the law. For the past sixteen months, he has been working hard to free the president from accountability under a broad range of checks and balances that have played a critical role in our system for many decades. . . Barr has long believed that the president’s power should be virtually unchecked.
Trump has argued his power and “authority is total” during a national emergency. In questions from news reporters about this, his response was:
When somebody is president of the United States, the authority is total. And that’s the way it’s got to be. It’s total. It’s total.
Vice President Mike Pence argued that the President has absolute power in such circumstances when he said:
Well, make no mistake about it, in the long history of this country, the authority of the president of the United States during national emergencies is unquestionably plenary.
Think of the consequences of this if there had been an act of terrorism, a push for a declaration of war, etc.
This is why checks, guardrails, and norms matter in our democracy. In his defense of the Senate filibuster back in 2005, Sen. Kennedy explained:
. . .we as Senators have not only the right, but the obligation, to use every power at our disposal, with the Senate’s rules and traditions, to focus the attention of the Senate and the Nation, and ultimately the President, or the overreaching abuse of power by the White House. . . That is what our Senate powers and our Senate rules are meant to do. That is what checks and balances are all about. That is why the filibuster exists.
Reason #4: The Role of the Senate in Helping to Build Consensus
Former Sen. Fred Harris (D-OK) referenced the role of the Senate as “world’s greatest deliberative body” in his book Deadlock or Decision: The U.S. Senate and the Rise of National Politics:
The upper body was meant to be a saucer for cooling the hot coffee of the House — in other words, a restraint on public fever, an institution that could deter hurried and ill-considered action. James Madison agreed with this characterization, saying that “the use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.”
Sen. Harris adds:
The Senate was designed by the founders as a check on presidential power and public passions, an institution that could deter precipitous action. But it was also intended to be able to act when there was public, and senatorial, consensus and, in fact, to help engineer consensus.
The progressive push to eliminate the filibuster is embedded in a frustration that change does not occur quickly enough and in a belief that the majority should prevail unimpeded.
I, too, share the objectives of progressive voices that we should have universal health coverage, fully address climate change, and eliminate poverty in the wealthiest country on the planet. It is a fact that our system of government makes it very difficult to get things passed into law and that is both frustrating and infuriating at times.
However, the Senate’s demand for more careful consideration and debate can often lead to better and more progressive policy.
As one example, CHIP was created as a legislative bipartisan program in the Senate back in 1997. Since its enactment 23 years ago, it has worked, in tandem with Medicaid, to successfully cut the uninsured rate among children by two-thirds.
Unfortunately, despite its success, CHIP would have been effectively abolished, first, as part of broader package to create Obamacare by House Democrats in 2009, and second, as part of a budget amendment by Rep. Steve Scalise (R-LA) to abolish Obamacare in 2013.
In both cases, CHIP was saved by more bipartisan and careful consideration of the program’s future in the U.S. Senate. With majoritarian rule in the House, there was no effective way to raise concerns or offer and debate an amendment to protect the unique health care needs of children in either bill. Fortunately, the Senate saved CHIP and the health coverage of 10 million children in both instances.
When CHIP came up for reauthorization in 2017, both Republicans and Democrats supported its extension but with some important policy differences that led to the program’s expiration for four months before bipartisan agreement was achieved. While child advocates were dismayed by the delay, there is no doubt that the potential of a Senate filibuster made progressive priorities relevant and protected CHIP from some potentially significant problems that had been proposed, such as higher out-of-pocket costs, expanded waiting periods for children to receive coverage, cuts to translation and language services, and a rescission of billions of dollars in CHIP funding.
Therefore, throughout CHIP’s history, the Senate’s role as a place for more careful consideration, compromise, and consensus has proven to play a critical role in both CHIP’s creation and protection over its 23-year history.
In contrast, an underlying core premise of the push to abolish the Senate filibuster is a disturbing acceptance that division, conflict, discord, and hyper-partisanship as the accepted norm in our society and government. It is a sad, alarming surrender to Newt Gingrich’s vision, which is that politics is about “winning at all costs.”
The Man Who Broke Politics
Newt Gingrich turned partisan battles into bloodsport, wrecked Congress, and paved the way for Trump's rise. Now he's…
Gingrich’s vision embraces: toxic partnership, demagoguery, political warfare whereby fellow Americans are cast as the enemy, and a ruthless, bitter, and destructive culture where compromise is rejected as weakness.
In the House, the majority overwhelmingly stacks the committees and the staffing of those committees in its favor by wide margins. Consultation with the minority on legislation is minimal to non-existent. The opposition party is, in effect, the enemy.
Consequently, since the mid-1990s, the House has operated under the unwritten “Hastert Rule” or the “majority of the majority rule.” Even if the majority of members of the House might support a piece of legislation on a bipartisan basis, the Speaker will not even schedule a floor vote on any bill without majority support within his or her party.
This is also Trump’s operating philosophy. Even when he could obtain bipartisan agreement on various issues, he resorts to abject partisanship as his operating principle and focus.
The capitulation to such a no-holds-barred vision of our government will only lead to further estrangement, disunion, and instability, as political winners cast aside and destroy all that their the opposing party created in never-ended cycles.
Some progressives argue it would be a net positive. I disagree.
On the issue of health coverage, for example, Medicare For All supporters might eliminate Obamacare, Medicaid, and CHIP in order to enact their vision for universal coverage one year to only have it all repealed a few years later when the political environment changes and a simple conservative majority replaces Medicare For All with vouchers. In that case, progressives would not only lose Medicare For All, but gone would also be Obamacare, Medicaid, and CHIP.
The result would potentially be a series of perpetual radical swings on a variety of policy issues, including health care, the environment, gun safety, women’s reproductive health, education, and immigration.
There is no “we” in Donald Trump’s and Newt Gingrich’s vision. There is only “us” versus “them.” In recent weeks, Trump retweeted a post that encouraged leaving Democratic-led cities and letting them rot and then signed a memo to bar federal funding to those cities.
Rather than bringing people together, Trump has frequently sought to use the tools of government to dividing us into red states and blue states, rural communities versus cities, etc. Rather than being the president for the entire country, he divides us by rewarding friends and punishing enemies.
If that vision prevails in this country, there is no longer much “united” about the United States of America.
Reason #5: The Role of the Senate in Creating Stability in Our Democracy
The Senate also plays an important role of providing stability to the country. In Federalist #62, Madison to a number of problems that rapid and extensive change back-and-forth would cause the country. Madison writes:
In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. . .
Respect for our nation has been dropping across the globe.
Madison also highlights how this negatively impacts Americans individually:
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. . .
If you support complete elimination of the filibuster, the Senate would operate like the House and laws could be passed out of both chambers without careful consideration, real debate, or amendment.
In Defending the Filibuster: The Soul of the Senate, authors Richard Arenberg and Robert Dove argue that, without the Senate filibuster:
Over time, the Senate will likely become a majoritarian body like the House of Representatives, where the minority is rarely consulted, speech can be severely limited, and amendments are often not permitted at all.
That is not progress. Nor is it inclusive or even truly democratic. And again, it would likely lead to more dramatic swings and instability in our laws. Madison points out that stability is important in a democracy:
No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
Increased divisiveness and chaos are not a positive future for America. Gingrich converted the House into a political battlefield. The Senate is rapidly heading in that direction, but if you wish to put out a house fire, you should not fan the flames. We should be working to keep the Senate from reaching that point rather than taking steps to push it further down that path of never-ending partisan division.
As a result, instead of abandoning centuries of the Senate’s traditional norms of civility, courtesy, deliberation, and finding bipartisan, long-term solutions and consensus on issues of national significance, we should seek to reform the filibuster — not abolish it. Instead of giving up and accepting division, progressives should reach out to perceived opponents.
For example, after the passage of the Affordable Care Act (ACA) or Obamacare, 30 states and D.C. chose to expand Medicaid coverage to low-income adults. Rather than writing off the 20 states that had failed to do so, proponents of the Medicaid expansion worked to successfully elect supportive governors in states like Virginia and Louisiana and pass ballot measures in the “red states” of Idaho, Utah, Maine, Nebraska, Oklahoma, and Missouri. They have flipped eight states, are working to expand Medicaid in the remaining 12 states, and helped elect a supportive governor in Wisconsin as an example of those efforts.
These legislative and ballot successes, which have led to increased coverage for hundreds of thousands of Americans, came on the heels of a vote in the U.S. Senate on July 27, 2017, where Sen. John McCain (R-AZ) cast the deciding vote to prevent repeal of Obamacare and the block granting and reduction of over $800 billion out of Medicaid. McCain’s vote made all subsequent progress in the states possible. Moreover, it is important to underscore that the Senate’s failure to “repeal and replace” the ACA or Obamacare protected over 20 million people from losing health coverage and part of that victory can be attributable to the Senate filibuster and McCain’s interest in the Senate tradition of bipartisan compromise.
The Senate has its problems, but thank goodness for the Senate and its role in maintaining some stability, including the protection of the health coverage of millions of Americans.
Reason #6: Abolishing the Filibuster Places More Power in the Office of the Majority Leader
Much of the push for abolishing the filibuster centers on progressive disdain for Senate Majority Leader Mitch McConnell’s commitment to be the “Grim Reaper” for progressive legislation. Ironically, abolishing the filibuster would give him and future leaders more power — not less.
In the Senate, the Senate Majority Leader has the power to control what comes to the floor, but the Leader needs consensus on how action proceeds. Every senator has a greater opportunity to debate the issue and offer amendments to address the needs and concerns of his or her state.
Without the filibuster, the Majority Leader would control every aspect of Senate procedure, including whether the minority party is even allowed to debate or offer amendments.
Critics of the filibuster rightfully point out that the modern Senate is often locked in complete gridlock and inaction, in part, because the filibuster, once rarely used, is now routinely invoked and requires 60 votes to move any legislation or amendment other than judicial and executive branch appointments, which now require 51 votes.
However, critics sometimes wrongly attribute certain problems with the Senate to the filibuster. For example, some wrongly point to the Senate’s blocking of Merrick Garland as President Obama’s choice for the Supreme Court from Senate deliberation as a reason to repeal the Senate filibuster. In fact, the Senate filibuster had absolutely nothing to do with it. Sen. Mitch McConnell used his role as Majority Leader to refuse to schedule a vote on Garland’s nomination. Consequently, nobody filibustered it. It never was considered.
Wrongly, others cite Senate inaction on a range of progressive legislation in recent years as a reason to abolish the Senate filibuster. But again, that has nothing to do with the filibuster. Instead, it has to do with the Majority Leader deciding not to schedule legislation for Senate consideration that he opposes. Those measures never were considered either.
First Focus Campaign for Children was unable to identify a single Senate vote in all of 2019 that was specific to issues of importance to our nation’s children. Not one. Even common sense, bipartisan legislation that would improve the lives of children sits motionless and idle in today’s Senate, but it is not because they are being filibustered. Again, those measures never were considered.
As a result, the Senate filibuster should be reformed, but we should do so in a way that encourages majority action without consolidating more power in the Office of the Senate Majority Leader or undermining minority rights and protections.
Reason #7: Be Careful What You Ask For — the Senate Is Stacked Against Progressives
Before acting to gut the Senate filibuster, progressives should also recognize and carefully consider what that might entail in a Senate that is increasingly stacked against a Democratic majority.
In the 2016 presidential election where Hillary Clinton won the popular vote by over 3 million votes, Clinton won only 20 states. Therefore, even though Trump lost the popular vote, he won 30 states and the Electoral College. If both parties were to win the Senate seats won by the party for president in 2016, Republicans would hold a wide 60–40 majority, despite having fewer voters representing those states. This occurs because conservative states with few people such as Wyoming, Idaho, Nebraska, and North Dakota have the same number of senators as the more liberal states of California, New York, New Jersey, and Illinois with millions of people.
David Wasserman points out in FiveThirtyEight that:
Today, Republicans don’t even need to win any “swing states” to win a Senate majority: 52 seats are in states where the 2016 presidential margin was at least 5 percentage points more Republican than the national outcome. By contrast, there are just 28 seats in states where the margin was at least 5 points more Democratic, and only 20 seats in swing states.
Due to the increasing disparities in population between the states, Senate Democrats increasingly represent the majority of people in the country, even though they have a minority of seats in the Senate.
Consequently, Ben Eidelson makes the important point that the filibuster, when used by Senate Democrats, “has often served to enforce majority rule. . ., not to undermine it.” According to Eidelson’s analysis, between 1991 and 2008, there were 152 occasions where the Senate failed to enact cloture to stop a filibuster and that 40 percent of the time those opposing cloture represented the majority of the population. Moreover, during that period, Eidelson finds:
When Republicans have been in the majority, the filibustering minority has actually represented the majority of Americans 64 percent of the time.
In other words, the Senate filibuster sometimes protects the majority of people.
Meanwhile, although there are signs that demographic changes may flip states like Arizona, Texas, and Georgia from “red states” and into the category of swing states in the near future, the Senate would still be stacked against Democrats for some time to come. You simply cannot overcome the reality that California has two Democratic senators that represent nearly 19.8 million people, which is over 68 times more than the 290,000 people represented by Wyoming’s two Republican senators.
Demographics matter, and consequently, progressives should recognize that the Senate filibuster often serves to protect their agenda, policies, and interests, as it did often in 2017 and 2018.
Reason #8: It Is Easier to Destroy Government Than to Build It
“To build may have to be the slow and laborious task of years. To destroy can be the thoughtless act of a single day.” — Winston Churchill
Anyone who studies government and history knows that it takes years and years to enact and build programs like Social Security, Medicare, Medicaid, housing, nutrition assistance, and environmental protections, but demolition could take minutes or hours.
Government is not easy. It is the things that the private sector and individuals cannot achieve by themselves. Progress is often difficult, deliberate, and takes time, but destructive can be immediate and might prove to be unfixable.
For example, you cannot get your neighborhood public school back after it has been privatized. You cannot get back pristine public lands once turned over to profiteers. You cannot correct the damage done to immigrants and refugees after a period of mass deportations, family separations, putting kids in cages, ending asylum, and denying immigrant children basic health and safety protections. And, if Planned Parenthood clinics were closed, it would likely take years to rebuild them.
Those who seek to abolish the filibuster argue it protects the status quo rather than promotes change. They incorrectly claim that this disproportionately harms progressives.
First, it must be recognized that an important portion of the progressive agenda is defensive, including: the protection of programs like Social Security, Medicare, Medicaid, CHIP, Head Start, food stamps, and unemployment insurance; the protection of things we cherish like our public schools and the National Parks; and, opposition to changes that would undermine civil rights, voting rights, human rights, consumer protections, and labor laws.
Second, the idea that the agenda of the right-wing reflects the “status quo” is erroneous and false. Trump’s MAGA agenda has been anything but the status quo. As described in detail earlier, if his legislative agenda had been unconstrained by the Senate filibuster, there is absolutely no telling what profound and even radical changes could have been enacted into law under his direction.
Defense matters. Sen. J. William Fulbright (D-AR) once said:
The greatest single virtue of a strong legislature is not what it can do but what it can prevent.
There is no doubt that change can be positive, but change can also be terribly destructive and harmful.
9) Debate and Careful Consideration Is a Progressive Value
More often than not, legislation crafted in backroom deals, without debate, or full consideration or scrutiny, favors the most powerful and influential interests in our society. For this reason, progressives have long pushed for transparency and oversight in government.
Progressives also believe in the power of their agenda and have long argued for more democracy and open debate rather than less.
While the Senate filibuster should be reformed to get the Senate back to its traditional role of actually considering and debating legislation, the goal should not be to turn the body into the House of Representatives, which typically restricts amendments and debate.
Arenberg made this point back in November 2012 when the option was being considered by Democrats before President Obama took office:
No one should be fooled. Once the majority can change the rules by majority vote, the Senate will soon be like the House, where the majority doesn’t consult the minority but simply controls the process. Gone would be the Senate’s historic protection of the minority’s right to speak and amend. In the House, the majority tightly controls which bills will be considered; what amendments, if any, will be in order; how much time is allotted for debate; and when and under what rules votes occur. Often, no amendments are permitted.
Consequently, the warning “don’t throw the baby out with the bath water” applies to those that wish to abolish the filibuster. The Senate needs reform but filibuster abolitionists should not encourage or enable the possibility whereby decades of progressive policies in both the House and Senate could be rapidly obliterated without debate or amendment.
As an example, I was personally involved in a mini-filibuster in the Senate back on November 5, 1993, in opposition to an amendment by Sen. Jim Exon (D-NE) that sought a ban on federal funding to immigrants. It read:
PROHIBITION ON PAYMENT OF FEDERAL BENEFITS TO ILLEGAL ALIENS. –
(a) DIRECT FEDERAL FINANCIAL BENEFITS.- Notwithstanding any other law, no direct Federal financial benefit or social insurance benefit may be paid, or otherwise given, on or after the date of enactment of this Act, to any person not lawfully present within the United States except pursuant to a provision of the Immigration and Nationality Act.
With little debate, the Exon language had passed the Senate on a vote of 93–6 in July 1989 (four years earlier), but fortunately, it had not became law. During the 1993 consideration of the crime bill, Sen. Bob Graham (D-FL) worked with Sen. Paul Simon (D-IL) and that then included Bill Bradley (D-NJ), Dianne Feinstein (D-CA), Carol Moseley-Braun (D-IL), Barbara Boxer (D-CA), Patty Murray (D-WA), Daniel Patrick Moynihan (D-NY), and others to use the filibuster to fully debate and educate the Senate about how this sweeping language by Sen. Exon was, first and foremost, likely unconstitutional with respect to public education (see Plyer vs. Doe) and would have:
- Barred emergency care and public health care, including access to immunizations, for immigrants;
- Harmed community health centers, public health clinics, and hospitals;
- Denied children access to nutrition programs;
- Required the creation of massive bureaucracies at enormous cost to taxpayers in order to impose citizenship checks for every conceivable use of federal dollars even by states, localities, and private entities;
- Harmed American citizens, who do not always have papers on hand to prove citizenship, from accessing services;
- Barred U.S. citizen children living in households with immigrants from accessing benefits;
- Abdicated federal responsibility for immigration policy; and,
- Shifted costs to state and local governments.
In 1993, the senators opposed to the Exon legislation were from the largest states in the country and the vast majority of the communities that would have been disproportionately harmed. However, they did not make up a majority in the Senate.
In contrast, the two biggest proponents of the language were from Nebraska (Sen. Exon) and Wyoming (Sen. Alan Simpson), which are two of the smallest states in the country with few immigrants. Sens. Exon and Simpson repeatedly asked to cut off debate on the amendment and move toward final passage.
Fortunately, the Senate filibuster allowed opponents of the Exon legislative language to raise, debate, and offer amendments that highlighted the extensive objections and concerns Exon’s legislation would cause their citizens, communities, and states.
Slowing down the debate worked. It resulted in further reflection, greater understanding, an acknowledgement that its sweeping language was unconstitutional, and an eventual compromise that rejected the harmful changes proposed by Sen. Exon. The compromise passed the Senate by a vote of 85–2.
Twelve years later, in explaining why it was important to protect the Senate filibuster, Sen. Kennedy said:
…the Senate’s rules have allowed the minority to make itself heard as long as necessary to stimulate debate and compromise, and even to prevent actions that would undermine the balance of powers, or that a minority of Senators strongly oppose on principle.
At First Focus on Children, we believe that every child, regardless of their citizenship status, should have access to health care, education, and nutrition services. Our organization did not exist in 1993, but it is in the best interest of children that the initial Exon language was never adopted. If the Exon amendment had become law, it would have left an insurmountable hill to climb in order to correct the legislative and regulatory harm it would have caused to children, including citizen children, and their families and communities across this country.
In fact, there should no doubt that the Trump Administration would have seized upon this language and used every agency in the executive branch to be as punitive and harsh as possible on immigrants. Cruelty would have been the point, but fortunately, they did not have the law on their side.
On that point, I remind progressives, thank goodness for the Senate filibuster and the full and open debate it created.
Reason #10: Trump Strongly Supports Abolishing the Senate Filibuster
Finally, it should give filibuster abolitionists enormous pause that President Trump is their biggest ally. Trump desperately wants and demands repeatedly that the Senate abolish the filibuster.
The Nation’s Founders understood that those in power might believe that the rules most Americans live by don’t apply to them. That is why they put in place a democracy that preserves our rights and freedoms through checks and balances. These checks and balances protect our mainstream values by preventing one party from arrogantly and unilaterally imposing its extreme views on the Nation.
It has driven President Trump crazy to have his authoritarian impulses checked. He, more than anyone, is the biggest opponent of the Senate filibuster and has pushed for the “nuclear option” to eliminate it.
I, for one, am grateful that our nation’s checks and balances, including the Senate filibuster, have played an important role in checking extreme, and potentially, autocratic rule.
A Better Path: Change and Reform the Senate Filibuster
There is no doubt that the Senate is failing to do the job needed to address the enormous problems facing our nation. Some of the problems with the Senate are wrongly blamed on the filibuster, but it is clear that the filibuster has been abused over the years and should not be allowed to thwart important action and progress.
But what is needed is reform rather than abolition.
One option is for a group of former and current senators, experts, and citizens to come together as a formal committee to consider and recommend possible options for reforming the Senate filibuster that should be considered. Frustration over the abuse of the Senate filibuster and the use of holds to thwart any and all action is bipartisan and there is an opportunity to find consensus on how to improve the Senate while retaining its critically important roles in our system of government.
In 2012, Arenberg recommended something similar:
Now is a good time for a new gang of senators to rise above partisan bickering and negotiate changes based on what’s best for the Senate and our democracy, not just what’s best for the majority.
There are a number of Senate reform options that would achieve those goals. The Congressional Institute offers a number of choices to improve the Senate’s operation that include:
- Eliminate the filibuster on the motion to proceed
- Lower the threshold to invoke cloture
- Peg the threshold to the size of the majority
- Set threshold to 55
- Ratchet-down of the threshold to invoke cloture
- Require filibustering senators to hold the Senate floor
- Refuse to honor holds
- Eliminate the dual-track system
- Reforms to cloture petition timeline and post-cloture debate
Another proposal by Gregory Koger at the University of Miami would seek to rebalance the Senate filibuster with a similar list of reforms:
- In order to keep a filibuster alive, senators must muster 41 votes against cloture.
- Once cloture has been invoked, the deliberation period terminates when no one is speaking or offering an amendment and the chamber is not voting.
He also proposes a few other modifications that include:
- Make the motion to proceed “non-debatable.” The motion to proceed is the Senate’s basic agenda-setting motion, and by custom the majority leader has first priority in making these motions (among others). Since the 1970s, majority leaders have proposed making these motions immune to a filibuster, arguing that it does not make since that opponents of a bill can filibuster both the bill and the motion to make it the main topic of discussion. My proposal is different, however, because it is linked to a pro-minority reform…
- Allow the minority party leader (or some other opponent of the proposed bill) to make a substitute motion to proceed, with one hour of debate. Again, a major reason the floor process stalls — even on uncontroversial bills — is that senators want to vote on non-germane issues. This reform allows senators to bring up these alternative issues at the agenda-setting stage, and frames the debate as competing priorities: of these two bills, which is the more important problem to tackle right now? This rule would institutionalize one of the key distinctions between the U.S. House and Senate: the Senate is a chamber that debates a wide range of issues, and not just the topics the majority party wants to emphasize.
- Once the Senate selects a bill for floor debate, all amendments must be germane to the bill. It is no longer feasible to debate everything on anything. Adopting a germaneness rule will help senators to focus on the task of perfecting legislation instead of grandstanding.
- Adopt as a standing order a default floor agreement with decentralized amendment selection. Current floor negotiations start with a blank sheet of paper and party leaders negotiate the details, so a highly decentralized chamber becomes subject to a centralized process. Instead, the Senate could begin debating and voting immediately on a bill using a default floor agreement that lays out a fair process.
There are other proposals for reform, including those by a number by U.S. senators, that should be considered.
Another important option for consideration would be to eliminate the filibuster on the procedural motion to send a bill to conference committee with the House.
The point is that the solution to improving the operation of the U.S. Senate is found in neither of the binary choice options of keeping or abolishing the filibuster. What we need instead is reform that eliminates complete gridlock while protecting our democracy’s system of checks and balances and minority rights.
Joe Biden on Abolishing the Senate Filibuster in 2005
Finally, the arguments made by Sen. Joe Biden, who spoke out against using the “nuclear option” to eliminate the Senate filibuster for judicial appointments back in 2005, should be carefully considered in any debate over the filibuster now or in the future. Here is what he said:
We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party. . .
Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights, and they also have a consequence, and would undermine the protections of a minority point of view in the heat of majority excess. . . What shortsightedness, and what a price history will exact on those who support this radical move.
We are only the Senate’s temporary custodians — our careers in the Senate will one day end — but the Senate will go on. Over the course of the next hours and days, we must be Senators first, and Republicans and Democrats second. We must think of the rights and liberties of the American people, not just for today but for the rest of our lives. . . .
Biden was correct in his warning that the Senate would be radically and permanently altered if the filibuster were abolished and how that might negatively impact the “rights and liberties of the American people.”
Therefore, we should be extra careful about the implications that taking such an action will have. Legislative majorities change. Presidents can either comply with laws, precedents, and norms or, as we have learned, they might not. It is important that the Senate continues to serve the role of being the place that protects our democracy against power grabs by the House and imperial presidents, protects minority voices, protects the institutions of governments, and results in more debate, deliberation, conversation, and consensus.
For all of the reasons cited above, progressives should choose filibuster reform over abolition.