The silent filibuster was the bane of the liberal existence during the first two years of the Obama administration.
Many expected that a Democratic landslide in 2008 would lead to federal action on a whole host of progressive priorities. While those two years did see an economic stimulus, health care reform, and financial regulation, all three required contentious partisan fights and huge expenditures of political capital. Legislation to address climate change, empower unions, and reform the immigration system was blocked altogether.
One of the biggest obstacles for Democrats was the Republican weaponization of the filibuster that established a de facto 60-vote threshold for everything in the Senate. The Democratic caucus (including independents) had between 58 and 60 throughout the 111th Congress; a healthy majority, but lacking the votes to invoke cloture and end filibusters with ease. Bills that didn’t fail were watered down, as concessions were made to moderate Republicans and conservative Democrats in order to attract their support.
Abuse of the filibuster during the Obama-era, as it has in the past, prompted a mainstream reconsideration of the tactic and pushes from Democratic senators to reform the filibuster by a majority vote (often called the “nuclear option”) the beginning of the 112th and 113th Congresses. Majority Leader Harry Reid finally did invoke the nuclear option in November 2013, lowering the threshold for cloture from 60 to 51 for executive and non-Supreme Court judicial nominations.
Opponents of reform argued idealistically that this would fundamentally change the nature of the Senate as an institution. But they also presented a more practical case: Senate Democrats would be foolish to erode the power of a minority that they one day might be in.
That day has arrived. After big gains in last month’s midterms, Senate Republicans will have 54 seats to Democrats 46 when the Senate reconvenes on January 6. With the change in partisan control comes decisions for both party caucuses in how to adapt to their new position. Republicans are already discussing whether to reverse the nominations nuclear option. Reid and Democrats need to decide what kind of minority party they want to be.
Barack Obama is still the president, so Republicans aren’t in the exact same position Democrats were in 2009-10. The ability to approve nominations with 51 votes is most critical when the same party controls the White House and the Senate, as has been the case for the past six years. Still, I expect the GOP majority to engage in what John McCain has said would be “rank hypocrisy” and maintain the 51-vote rule for nominations and use other procedural moves like reconciliation to govern with a simple majority. It’s rarely in one’s self-interest to limit one’s own power.
How should Democrats respond? I’m mostly in agreement with Danny Vinik and others who think Reid would be crazy not to use the filibuster liberally against McConnell. Not doing so would tantamount to unilateral disarmament, suffering the costs of obstruction while in the majority but failing to reap the benefits in the minority.
How does this strategy square intellectually with frustration that the filibuster was used to block any number of worthwhile liberal initiatives? It doesn’t, at least not completely. It’s why this practical embrace of the filibuster is qualified: If at any point in the next two years, Mitch McConnell proposes getting rid of or substantially weakening the tactic - not just for nominations but legislation as well - then Democrats should endorse the move and not stand in the way.
This stance is not without risks. If a Republican wins the White House in 2016 and the GOP retains control of the Senate and the House, filibuster reform would make it easier to enact is agenda, which consists of some genuinely awful public policy proposals.
But historically the filibuster is an institution that has been far more of an obstacle to the left than the right. Civil rights legislation in the 1950’s and 60’s was delayed or weakened in order to end filibusters by Southern Democrats. The Labor Reform Act of 1977 passed the House, but failed in the Senate because it didn’t have 60 votes. Meanwhile, the Bush tax cuts of 2001 and 2003 were rammed through via reconciliation, with Vice President Dick Cheney breaking a 50-50 tie on one key vote.
Ryan Cooper outlined in a recent piece how different Obama’s presidency might have been if Democrats had needed only 51 votes in the Senate (emphasis mine):
First, apropos of Paul Krugman, let's consider an alternate history that might have won Democrats the 2010 election. The moment Obama is inaugurated, Senate Democrats use their supermajority to pass a stimulus twice as big as the Recovery Act, plus 25 percent to be safe, plus additional triggers for more stimulus in case unemployment didn't come down fast enough, topped off with a big homeowner assistance package. They immediately fill empty seats on the Federal Reserve board with fervent advocates of monetary stimulus. They pass aggressively left-wing health care reform — what came out of the House, or universal Medicare.
With the help of filibuster reform, all this could have been done at the same time. Indeed, this agenda could have been polished off in a couple of months, instead of wasting weeks of floor time letting cloture petitions ripen. This program could have easily gotten unemployment down to 5-6 percent. It would have inspired massive enthusiasm and turnout among Democrats.
Democrats can’t go back in time, but they can learn from their mistakes. Losing elections part of the time is inevitable in a competitive party system. But if you can’t implement the policies you campaign on when you do win, democracy is failing on a basic level.
Eliminating the filibuster won’t by itself solve every problem afflicting American democracy. But it is an absolutely necessary first step.
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