Thoughts on How to Eliminate the Filibuster
Everyone is making the case for why the filibuster is bad, but we need a plan to actually get rid of it
Back on January 5th, Jon Ossoff and Raphael Warnock swept the Georgia runoff elections to bring the total number of Senate Democrats to 50. Last Wednesday, Kamala Harris was sworn in as Vice President, giving Democrats the vote to make them the majority. However, when the Senate meets this week, the Republicans will still be in charge. Mitch McConnell will still have the gavel and the committees will be chaired by Republicans.
And why is this? Because McConnell is blocking Democrats from taking the majority and slowing down the confirmation of Biden’s appointees in the middle of a pandemic. Unlike Trump, McConnell’s coup is non-violent, but it is just as anti-democratic.
Despite working in the Senate for many years, I never learned a lot about Senate procedure. What little I learned fell out of my brain a long time ago, but here is the short version of what is happening. At the beginning of every new Senate, an organizing resolution must be passed to set the ground rules, committee make ups, etc. This is almost always a pro-forma exercise. McConnell is blocking the organizing resolution, because he wants the Democrats to pledge to preserve the filibuster — the legislative loophole that requires 60 votes to pass nearly every piece of legislation.
And how is McConnell blocking the organizing resolution? Yep. You guessed it – by using the filibuster.
McConnell’s ephemeral power grab is unprecedented, but it is also purely symbolic, decidedly short-lived, and quite stupid. He will cave. Democrats will take the majority that is rightly theirs. In pursuing this path, McConnell has confused clever with smart and a tactic with a strategy. In the end, McConnell delayed Biden’s agenda and Schumer’s majority by a few days, but he strengthened Democrats hand if and when the question of the filibuster ripens.
Many people have made very compelling political and substantive arguments about why the filibuster should be eliminated. During his eulogy for Congressman John Lewis, former President Obama referred to the filibuster as a “relic of the Jim Crow era.” If Jim Crow relic isn’t a sufficient argument to convince you that the filibuster should be ditched, you probably have some thinking to do. Ezra Klein takes the argument one step further in a recent column in the New York Times to make the case that eliminating the filibuster is essential to Democratic success in 2022 and beyond:
[Democrats] have plenty of ideas that could improve people’s lives and strengthen democracy. But they have, repeatedly, proved themselves more committed to preserving the status quo of the political system than fulfilling their promises to voters. They have preferred the false peace of decorum to the true progress of democracy. If they choose that path again, they will lose their majority in 2022, and they will deserve it.
The question of WHY the filibuster should be eliminated is quite clear (thanks Mitch!), but the question of HOW it gets eliminated is much more difficult. All it takes to change a senate rule is a majority of Senators. Democrats have a majority of Senators (thanks Trump), so it should be easy right?
Nope.
Despite the compelling columns, well-formed arguments, and the many, many tweets, there is a lot of work to do to eliminate the filibuster and enact the progressive policies the American people support.
Here are some thoughts on how to get it done:
Build the Case
The conversations around the filibuster are often arcane and esoteric — steeped in language about majoritarian rule and Senate tradition. That’s all well and good, but it’s not persuasive to a broader public who pays passing attention (at best) to politics. The arguments for filibuster elimination need to transition from theory to practice. Democrats need to build a case against the filibuster by demonstrating time and again how the Republicans are using the filibuster to block policies supported by a bipartisan majority of Americans.
When Joe Biden released his COVID and Economic Relief package, Republicans howled like stuck pigs because it included a provision to increase the minimum wage to $15. They called it divisive. Some news outlets referred to it as pandering to an antsy liberal base. This is absurd. A Pew Poll from 2019 found that a $15 minimum wage was supported by two-thirds of Americans. In November, Florida voters approved a ballot measure to increase the state’s minimum wage to $15 with more than 60 percent of the vote. Biden’s minimum wage proposal is a piece of mainstream legislation that will almost certainly be blocked by a minority of Senators. Whether they pay a price for that obstruction is up to us.
Democrats need a series of confrontations on issues like the minimum wage to build our case against the filibuster. In the coming weeks, the Democratic House is expected to pass a substantial democracy and government reform bill. Unlike much of Biden’s COVID relief plan, almost none of the democracy bill will be eligible for the 50-vote budget reconciliation process. Therefore, the Senate Republicans will certainly use the filibuster to block it.
After each and every obstruction, the people who oppose the filibuster must shout a two-part message from the rooftops. First, a minority of Republican Senators are blocking a mainstream and much-needed policy AND that Democratic Senators have the power to overcome that obstacle.
The message works best when there are specific, real-time examples to which to point.
Use the Right Language
Almost no one knows what the word filibuster means and fewer know how it works. If we want to persuade Senators to eliminate the filibuster, we need to persuade their constituents it is a good idea. That means using language that people understand. In other words, say “filibuster” less.
A recent Navigator poll found that only half of respondents say they understand the filibuster “well,” including only one in five who say they understand it “very well.” However, 60 percent of Americans, 75 percent of Democrats, and even 46 percent of Republicans believe that getting rid of the filibuster would have a positive impact when it is referred to as a “loophole that allows a small minority of U.S. senators to block legislation.”
This loophole framing is key and should be how we talk, tweet, and post about the issue going forward. Additionally, the poll found that support for filibuster elimination went up when it was explained that it made policies more likely to pass. Passing COVID Relief, background checks for firearms, and infrastructure spending each caused more than 50 percent of respondents to be more likely to support getting rid of the filibuster.
Put More of the Onus on McConnell
While the work of activists is rightly focused on persuading Democrats to do the right thing, we can’t let Mitch McConnell off the hook. How McConnell plays his weak hand will be the biggest factor in whether the filibuster gets eliminated. We need to focus on his obstruction. We need to push back on his self-created image as some Senate institutionalist. Let’s not forget that one of the first things McConnell did after Trump was elected was eliminate the filibuster for Supreme Court nominees to jam through Neil Gorsuch to fill the seat that McConnell stole from President Obama.
The Capitol Hill press corps who is complicit in glorifying McConnell’s destructive behavior treats his obstruction as an immutable condition. In their mind, the only question that matters is how Democrats overcome it. We can’t buy into that framing. We have to actively push back against it and put more of the onus on McConnell for why things aren’t working.
Ultimately, McConnell can obstruct Biden or he can preserve the filibuster, but he can’t do both. And that is how we should frame it. The filibuster is in McConnell’s hands. If he wants to work with President Biden and the Democrats in a bipartisan manner, the filibuster likely survives. If McConnell treats Biden like he treated Obama, the filibuster could be gone.
The Manchin Question
On Saturday night, Jon Favreau asked the following question on Twitter.
The responses ranged from pushing Biden to solve the problem to an array of large infrastructure projects in West Virginia named after Manchin. In a 50-50 senate, Democrats have zero margin of error. As a conservative Democrat with a reputation for bucking the party, Manchin may be the most powerful person in Washington other than Joe Biden. The Manchin question is challenging because he is immune to a lot of the typical pressure points. He was just reelected. He isn’t concerned about a primary challenge from the Left. He is not influenced by criticism from the left. In fact, being hammered on Pod Save America, the Rachel Maddow Show and other progressive media likely helps him more than it hurts him in deeply red West Virginia.
My response to Jon’s question is don’t worry about Manchin … for now. Joe Manchin is the hardest vote to get, but he isn’t the only one. Kyrsten Sinema and Diane Feinstein are also publicly opposed to getting rid of the filibuster. There are undoubtedly many others undecided or quietly opposed. We should go about persuading the other Senators first. Get more and more of them on the record opposing the filibuster. Every additional Senator makes the next one more likely. There needs to be a bandwagon effect. Change on these procedural issues happens slowly and then suddenly. Manchin is not gettable now, but he might be later. Obsessing over his vote obscures the work that needs to be done right now.
Join the Grassroots Efforts
The folks at Indivisible are working to build a grassroots movement to push for democracy reform. Any effort to fix our democracy depends on eliminating the filibuster. You can read more about their plan here.
Fix our Senate is a campaign working to get rid of the filibuster and make Washington, DC a state (which can only happen if there is no filibuster). You can learn about their effort and sign their petition here.
The filibuster may seem like an odd thing to obsess over during a pandemic, a recession, and after an insurrection. But there is no other option. After nearly a decade, Democrats finally have the power to improve people’s lives and enact progressive policies. Right now we have one hand tied behind our back. When the voters go to the polls in 2022, I would rather they judge us for what we did than what Mitch McConnell stopped us from doing.
Getting rid of the filibuster is not easy. But it can be done. It’s not enough to just yell about those who disagree. We have to do the work.
Didn’t the filibuster save ACA (aka Obamacare)? There’s been an argument for the speaking filibuster. What if we strengthened that rule to require the speaking must be on topic, non-repetitive and continuous.
By avoiding another rendition of Green Eggs and Ham, keep Senators on the legislative topic. If there’s opposition, require them to speak in opposition. Better yet, require actual debate. If anyone breaks the rules, fine the hell out of them.
If you keep Senators on the floor and eliminate their nights and weekends, we just may get substantive or reasonably negotiated legislation passed.
I agree we need to get past the petty bomb we have in the filibuster today. Nothing says we can’t agree to preservation and then pass a rule with strict guidelines (on a party line) on the use of that privilege.
"Additionally, the poll found that support for filibuster elimination went up when it was explained that it made policies more likely to pass." Framing, framing, framing. I think Americans are much more easily persuaded when you say 'do you want a simple up or down vote on bill?