Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

23 January 2021

Kill the Filibuster!

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.
For the principal post on killing the filibuster, click here.

Circumventing the Filibuster

In the principal post below, I argued for abolishing the filibuster. The reasons are powerful. It’s not part of our Constitution and never has been. It’s antidemocratic. Although its original intent was only to delay legislation, modern Congresses have grotesquely abused it, converting it into a routine minority veto. In the years of our new century, minorities of 41% or greater have used the filibuster to veto legislation at 142 times the average rate from 1917 to 1972.

The new Democratic Senate can eliminate filibusters with a simple majority vote. But two Democrats— Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—have said they would not vote to abolish it. Former majority leader Mitch McConnell also has reportedly been trying to extract a promise from current Majority Leader Chuck Schumer not to abolish it. McConnell is apparently leveraging his power to bargain over selecting the chairs and committee assignments in an evenly divided Senate, with Vice-President Harris presiding to break tie votes. As usual, he’s trying to play hard ball.

Of course Leader Schumer should not give in. If he made the promise, he would give up his chief leverage over the Republican caucus. Fortunately, there are ways to circumvent the filibuster that may not have been fully explored.

Bills appropriating money can avoid the filibuster by using a so-called “budget reconciliation” process. But what about bills that don’t involve money, on such subjects as mandates for mask wearing and social distancing or protection of citizens’ voting rights?

One answer is that recalcitrant states badly need money for pandemic relief and economic recovery. Congress’ power to impose conditions on its grants of money is, according to an authority, “well established.” The “conditions must be related to the federal interest for which the funds are expended[,]” and Congress must not force unconstitutional activities on the states. If they meet these requirements, the conditions are constitutional.

For example, Congress could condition grants of money for vaccines and pandemic relief on a state imposing mask-wearing and social-distancing mandates on its people in accordance with federal guidelines. Or the conditions could include specific benchmarks in testing, contact tracing and quarantining . These conditions are “related to the federal interest” in reducing the spread of and suffering from the pandemic. They don’t require unconstitutional activities because states have broad power to restrict their citizens’ liberty for the sake of public health.

As Ezra Klein has argued, Democrats’ most important agenda item, after pandemic relief and economic stimulus, is making sure that every citizen has the ability to vote and vote easily. That’s an item on which all else ultimately depends.

To ensure that ability, Congress could condition grants to states on their providing: (1) voter registration by mail; (2) automatic registration upon receiving a new or renewed driver’s license or registering a car; (3) universal voting by mail upon request, without any reason; (4) early voting for weeks or a month before each election ; and (5) election days that fall on a Sunday or public holiday. On what kind of grant could Congress impose these conditions?

Pandemic relief might be too big a stretch. So might a general economic stimulus. But grants for the purpose of buying voting equipment, supporting electoral staff, and securing the vote against electronic hacking and physical interference no doubt would be “related to the federal interest” in secure and proper voting.

In addressing our racially biased incarceration epidemic, there are two ways to circumvent the filibuster. For federal offenses, the President could issue an executive order setting up a commission within the Department of Justice to review criminal convictions and sentencing for compliance with minimum requirements for controlling racial bias and avoiding excess. In cases that violate those requirements, the President could use his unreviewable power to pardon the convict or commute the sentence. For state offenses, Congress could condition grants to states for prison construction and maintenance, and for law enforcement generally, on their setting up and following similar state systems, with similar minimum requirements, for pardons or commutations by their governors. So constrained, state systems might even be preferable to DOJ review of state actions, as they would avoid control by “outsiders” and encourage “buy in” by state officials.

Similar approaches are possible in fighting global warming and pollution arising from electric-power generation. Congress could, for example, pass a $ 3 trillion clean-energy bill, providing money for states and localities to procure and install solar arrays, windmills, energy-storage devices and a smart grid to connect them. Instead of imposing effluent controls on existing coal- or gas-fired power plants, Congress could condition these grants of money—and all the good jobs they would fund—on states phasing out their polluting fossil-fueled plants pari passu with the federally funded renewable sources of electric power, kilowatt for kilowatt.

Of course it would be best to kill the filibuster. It’s an absurdly outrageous insult to majority rule, and it’s been absurdly abused in practice, especially recently. But the best need not be the enemy of the good.

In this terrible time, the federal Congress is in the driver’s seat. Unlike state legislatures, most of which must balance their budgets each year, Congress can borrow to spend. The states desperately need money, because their economies are collapsing under the pandemic’s pressure.

Coincidentally, Congress’ exercise of its unique ability to borrow and spend is free from the filibuster under the special Senate rules for “budget reconciliation.” So by combining much-needed grants of money with lawful conditions on them, Congress can make an end run around filibusters that might block attempts to enact those same conditions separately as positive law.

[The principal post on killing the filibuster follows:]

Sometimes a silly idea gets fixed in people’s heads. It gets sillier and sillier, but no one can drive it out, until at last it reveals its destructive force. So it is with the filibuster.

Search our Constitution for the word electronically. Read every word for sense. You won’t find the word or the concept, because neither is there.

All our Constitution says on the subject is that the Senate and House can each make their own rules. So the Senate wrote its rules to include the filibuster. Except for our own copycat states, no other democracy has anything like it.

The filibuster has two dirty little secrets. First, it was originally designed only for delay, not for its chief use today, as a permanent minority veto. Second, because it’s a Senate rule, the Senate can change it by a simple majority vote.

At our Founding, there was no telephone, telegraph, radio, TV, cars, trucks, trains or planes, let alone the Internet. To get from one place to another, or even to communicate, someone had to travel physically. The fastest way was on horseback. So it took a week or more to get—or to send a message—from the farthest reaches of the nation to the seat of government, then at Philadelphia.

This physical reality lent itself to mischief. Our Constitution says that a “Majority of each [House] shall constitute a Quorum to do Business[.]” So, in theory, a little over a quarter of the Senate’s whole membership (a majority of a quorum) could pass bills while all members but a bare majority were away. The filibuster was an obvious way of stopping this ploy by giving any senator a way to delay the proceedings. It’s just as obviously unnecessary today, when traveling across the country takes less than a day, and messages from anywhere on Earth can arrive in seconds.

The filibuster once allowed for reasoned (if sometimes delayed) debate and an orderly, inclusive senatorial process. From 1917 through 1972, senators used the filibuster to block legislation exactly twelve times. That’s less than once every four years. But late in the last century it morphed into a routine minority veto.

The change started during Nixon’s presidency. It reached its peak during the last two years of George W. Bush’s presidency and the first two years of Obama’s, when the filibuster’s rate of use jumped to 142 times the rate from 1917 to 1972. Why? The Democrats had a majority in the Senate, and the GOP didn’t like that. So the old instrument of delay became a routine minority veto of legislation and presidential appointments.

Our Founders intended to give us checks and balances. These were supposed to act among the three branches—the Executive, Congress and the courts. If our Founders had intended to give a minority in the Senate the power to check a majority of the whole Congress, wouldn’t they have left us some record saying so? They wrote that both Houses together could override a presidential veto with two-thirds votes. Wouldn’t they have put in writing a veto of both Houses’ work by a 41% minority in the Senate?

It gets worse. Today a filibustering senator doesn’t even have to go through the motions of speaking to exhaustion on the Senate floor, as portrayed by the actor Jimmy Stewart in the old movie “Mr. Smith goes to Washington.” Instead, any senator can put a “hold” on anything—a bill or an Executive or judicial appointment—just by sending the senate majority leader a note. Then the 60% cloture rule, which permits the 41% minority veto, comes into play.

So the filibuster’s minority veto has become a veto by each senator individually, capable of being overridden only by that 60% “cloture” vote. In early 2010, Senator Shelby of Alabama blocked 70 of President Obama’s appointments in an attempt to extort a special benefit for his state. This is democracy?

As Lord Ashton said, “power corrupts, and absolute power corrupts absolutely.” By scratching each other’s backs, US senators gave themselves, each singly, the power to bring progress to a halt. They gave a 41% minority the power to block any change in policy that doesn’t involve money.

Most money-spending bills can circumvent the filibuster by a procedure known as “budget reconciliation.” Maybe senators do love to spend the people’s money, but the filibuster makes that the only thing a less-than-sixty-percent majority can do. Apparently, modern senators didn’t think much about how gridlock would deprive the Senate as a whole—and hence Congress as a whole—of the power to do anything but spend.

This trend has not just made Congress weak to the point of irrelevance. It also helped justify and enhance our imperial presidency.

Since the 1970s, when the filibuster’s use jumped dramatically, the Congress has given up its major powers, one by one. First came its power to declare war, replaced by after-the-fact justification for military action, or by the kind of broad AUMF (“authorization for use of military force”) that gave us our endless wars in Afghanistan and Iraq. Then came presidential circumvention of the House’s “power of the purse,” as when the last president diverted military money—defense funds!—to build his useless border Wall. The final ignominy came when the last president and his minions stonewalled House subpoenas as if they were idle requests.

Whatever our Constitution says, Congress has no power unless it acts. When it can’t or doesn’t act, it loses power by default. That’s precisely what has happened since the mid-seventies, when the rate of filibustering began ramping up to its current routine rate.

Today, an imperial presidency may be the least of our problems. The filibuster also has fostered the politics of destruction.

When one party is out of power, it can block not just the majority party’s legislative initiatives, but its appointments, too. By killing the majority party’s plans, the minority party can cause the people pain. Then it can point to that pain and blame the majority party in a quest to win the next election.

Anyone who didn’t see this strategy in play during Obama’s presidency wasn’t paying attention. It’s cynical and treasonous, but it appears to have worked; it may have helped elect our last president. Now there’s a grave risk that the Republicans, fearing demographic and cultural change in Georgia and elsewhere, will repeat the ploy. The politics of destruction may be all they have.

The Crash of 2008 was bad enough. In its aftermath, the begrudging GOP approved just enough stimulus to keep the financial system from collapsing.

But this time, we’re facing multiple crises together. We’ve got a global pandemic that is hitting us harder than it has any developed nation. If we don’t manage it well, it could produce misery to match the Great Depression. We’ve got a racial reckoning and an underclass of eleven million instantly-deportable undocumented workers to deal with. Russia is hacking our government and our infrastructure and turning us against each other. A disciplined and single-minded China is rising relentlessly and becoming militant. Global warming and rising seas are bearing down on our entire species like a freight train. We’ve got a dilapidated national infrastructure that badly needs repairing, and whose repair could create millions of non-outsourceable jobs. And our own media, especially the social kind, have put our voters into information bubbles, some of which are alternative universes of made-up “facts.”

Any one of these problems might have looked like an existential crisis back in the seventies. All together, they threaten unimaginable catastrophe today.

They require prompt action, not gridlock, from the branch of our government best empowered to face long-term challenges. Even pundit David Brooks, who once adored the filibuster as a handmaiden of deliberate reason, now recognizes the urgency of this moment. [Search transcript for “filibuster.”]

All by itself, our Senate’s gross malapportionment of power by population deprives us of anything resembling majority rule. But with the filibuster as used today, our Senate has become a monster of minority rule, disunity, dysfunction and individual extortion. (Recall Senator Shelby.)

The filibuster made it so from the outset. As the minority Sunnis oppressed the majority Shiites in Iraq, as Assad’s minority Alawites (with Russian help) are even now slaughtering Syria’s majority Sunnis, the filibuster has been a tool of oppression by the minority. By preventing Senate action without a supermajority, it preserves the status quo for those who benefit from it. It leaves us unable the respond to changes in geopolitics, the globalized economy, public health, demographics and, yes, social mores and climate.

Some say it’s a bulwark against passing public passions. But that’s the function of our Constitution and our Bill of Rights. They, and not the filibuster, enumerate specific rights that no legislature can change. The filibuster does nothing of the sort; it just perpetuates minority rule. It belongs in the dustbin of history, or in a museum, like the myth of a “genteel” South built on the backs of slaves, or statues of Jefferson Davis and Robert E. Lee.

It’s long past time to kill the monster. The hypothetical risk that, without it, our government will oscillate from one extreme to another with every change in Senate majority is grossly overblown. There are other checks and balances on the Senate, including the power of the House, the Executive and the courts. In contrast, the multi-pronged catastrophe facing us is real and present. So are gridlock and the politics of destruction.

If we want to do something real that matches this precarious moment, we must weaken legislative gridlock. If we want to reduce the politics of destruction, we must let Congress act. (The politics of destruction, too, can cause a race to the bottom through retaliation, as each minority uses it on the other side in turn.)

There are ways of persuading small-state recalcitrants like Joe Manchin with carrots and sticks. We must use every means of arm-twisting to abolish the filibuster, as soon as we can, along with imperial “holds” by individual senators. If we don’t, our national decline, not our vaccine rollout, will come at “Warp Speed.”

Senators can play their part in a functioning legislature in a working democracy, with due respect for their colleagues, the House, and the other branches. Or they can continue allowing a minority, or individual members, to throw gravel in the gears of government. They can’t do both. How they decide may determine whether our frustrated people turn to a strongman to make their dreams come true. Isn’t that just what the last four years forebode?

Today the “swamp” doesn’t cover all of DC. Only our Senate remains stagnant, putrid and stinking, as it has been for some time. The filibuster is the primary culprit. It’s time to abolish it.

Endnote: A Possible End Run? The filibuster’s bizarre obstructive power has only increased in recent years. The word “filibuster” originally connoted extended debate. A single senator would hold the floor in a marathon speaking session, through the night or longer. He or she could orate continuously until a “cloture” motion cut off “debate” by a vote of 60% of the whole Senate. As a procedural matter, the cloture vote would take priority over other business.

Today, as I understand from observing, no debate or marathon speaking is required. A senator simply sends the majority leader a note of intention to filibuster. Then the leader tables the bill or appointment in question until someone demands a cloture vote and, in the leader’s discretion, it is held. Perhaps the majority leader can even table a matter on his own initiative, with no debate at all.

This change made it far easier to kill a bill or appointment. It also left far more to the majority leader’s discretion as such.

That level of discretion fit Mitch McConnell’s iron-fisted “Doctor No” style. He exercised similar discretion in withholding hearings and any vote on Merrick Garland’s Supreme-Court nomination for 293 days, while ramming Amy Coney Barrett’s Senate confirmation through in only 27. Current Majority Leader Schumer should remember this history in deciding how much time to devote to a trial of the last president’s second impeachment.

Making filibusters easier no doubt made them more common. But it also had a minor advantage: by avoiding continuous occupation of the Senate floor, it allowed other Senate business to proceed. (Committee business could always proceed simultaneously. No rule requires senators to listen to their colleagues’ floor speeches, far less in person.)

Today Chuck Schumer is majority leader, not Mitch McConnell. Perhaps he can exercise his discretion as leader differently. Maybe he can require obstructors to filibuster the old-fashioned way.

Once filibusters required real time, effort and coordination on the obstructors’ part. So that tactic alone might reduce their frequency. Yet on matters of real conviction, the GOP might be willing to mount such an effort, having little important to do but obstruct. That’s why abolishing the whole outmoded, anti-democratic, obstructive procedure once and for all is by far the better solution.

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