The Post-Filibuster Age

From the Boiling Frogs on The Dispatch

Super Tuesday was a bad day for political norms, and not just because two men who have no business being president again locked up their parties’ respective nominations. For the third cycle in a row, a prominent candidate ended up whining that an election they lost had been “rigged.”

And this time it wasn’t one of the usual suspects, or even a Republican.

Rep. Katie Porter entered the race for California’s open Senate seat last year hoping to leverage progressive enthusiasm into an upset over the well-known and very well-funded Rep. Adam Schiff. It didn’t work: She finished third in Tuesday’s “jungle primary,” eliminating her from the general election and probably ending her political career. In a tweet afterward, she blamed her defeat on billionaires who had spent millions to, and I quote, “rig this election.”

She ended up almost 20 points out of the running, mind you. That must have been some seriously hardcore “rigging.”

Her party has spent three years arguing that Donald Trump is unfit for office because he doesn’t respect the democratic process; now here was one of its own, a member of Congress no less, normalizing disrespect for the process herself. The backlash that followed caused her to retreat from her claim in a second statement in which she clarified that she didn’t mean actual rigging, just, y’know, metaphorical rigging.

Still, not great. And not a total outlier when it comes to Democrats reacting to Trump’s ethos of norms-busting by busting norms themselves.

There is, of course, the small matter of Joe Biden’s Department of Justice having indicted his presidential opponent not once but twice. There’s also the effort among Democratic officials at the state level to disqualify Trump from the ballot under the 14th Amendment. There’s even been loose talk on Capitol Hill lately about House Democrats possibly seeking to disqualify him after he’s been reelected if the Supreme Court doesn’t squarely endorse his eligibility to be president again.

There are more pedestrian examples too. On Thursday I woke up to discover that New York’s Democratic governor had deployed the military to New York City—not to cope with an emergency, like a riot, but to fight routine crime. Seems like a really bad new norm to set with Donald Trump, Insurrection Act admirer, likely to take power in Washington less than a year from now.

The most consequential norm that Democrats are apt to shatter sooner rather than later, though, is the Senate filibuster.

The 60-vote threshold for cloture in that chamber is a brake on rash legislative action, preventing major changes to national policy without firm bipartisan support. If the Senate is a “cooling saucer” of reasoned deliberation that tempers the hot, popular passions of the House, the filibuster is its version of an ice cube.

We do not live in an age that values reasoned deliberation over hot, popular passions, alas. The filibuster is on borrowed time.

And that’s never been clearer than it has this past week.

The three foremost guardians of the filibuster in the Senate are Mitch McConnell, Joe Manchin, and Kyrsten Sinema.

McConnell refused to ditch the practice when his party enjoyed total control of the government in 2017 and 2018. Manchin and Sinema returned the favor when their party—after regaining control of the White House and both chambers of Congress—moved to pass sweeping legislation on voting rights and abortion. All three have offered institutional arguments to defend their position: If the majority is permitted to steamroll the minority, comity will suffer and cooperation will break down. Never again will the Senate function as a mechanism of consensus-building.

But if they were being honest, I suspect all three would admit that their fondness for the filibuster is driven by their distaste for policies favored by the ideologues in their respective bases. If you fear and loathe the populist right, as McConnell does, or the progressive left, as Manchin and (weirdly) Sinema seem to, having a 60-vote threshold is a convenient excuse for why legislation favored by those blocs can’t pass. So long as the filibuster exists, resistance from the other party can be blamed for thwarting that legislation; once it’s gone, blame for failing to advance it will fall squarely on the majority party itself.

McConnell, Manchin, and Sinema—three champions of the filibuster—will be out of power when the next Senate convenes in January.

Manchin announced his retirement in November, surmising that he was unlikely to win a third term in blood-red West Virginia with Trump at the top of the ballot this fall. McConnell revealed last week that he’ll resign as Republican leader in November after 17 years in the role. Then, on Tuesday, Sinema declared that this will be her first and last term in the Senate, departing at the ripe old age of 47.

Her Democratic colleagues immediately grasped the implications. “It’s time to get rid of the filibuster. The filibuster has been anti-democratic and has done a whole lot more harm than good,” Elizabeth Warren said. John Fetterman, an unlikely ally of Republicans lately on issues like immigration and Israel, reverted to partisan form and said he too favors ditching the practice. Ruben Gallego, the Democrats’ nominee to replace Sinema in Arizona, criticized her repeatedly for defending the filibuster in 2022 and would presumably vote to eliminate it as well upon joining the Senate.

In short, if the left retains control of the White House and Senate next year, the 60-vote threshold is probably gone. Whereas if Republicans regain the White House and Senate, the 60-vote threshold is … also probably gone.

John Thune, a contender to replace McConnell as conference leader, told Politico this week that he supports keeping the filibuster. But John Thune doesn’t lead the Republican Party, of course; the man who does also happens to believe that it’s time to dump the 60-vote rule. And he has good reason to do so given what’s happened on immigration since he left office. Had Trump been able to lock in his policies as president with federal statutes instead of resorting to executive orders that were easily undone by his successor, the crisis at the border might never have grown as dire as it has.

McConnell’s successor will hear that argument from the MAGA base over and over next year: No more executive orders. To make America truly great again it must be made great durably, and durable change requires legislation. If that means getting rid of the filibuster to overcome Democratic opposition, that’s what it means.

Lacking the sort of power base that McConnell had amassed from years of being in charge, a newbie leader like Thune or John Cornyn will have a harder time ignoring that argument than his predecessor did.

Democratic lawmakers will hear the same thing from their own base if they retain power in Washington, especially concerning abortion. The only way to restore the right to choose in red states that have banned it is to codify that right in federal law and trust that the supremacy clause or commerce clause will carry the day in court. Democrats will never find 60 votes for cloture on a bill like that, but if they manage to keep the Senate majority, they can certainly find 51.

But there’s more.

The bases of both parties have what I’d call “intangible” reasons to want to nuke the filibuster.

For grassroots Republicans, politics in Washington is essentially an extended litmus test of their leaders’ resolve to “fight.” Whether a 51-vote threshold for legislation will help or hinder the right’s agenda long-term will matter less to them than whether Trump supports getting rid of it (hint: yes), whereupon the focus will shift to whether figures like Thune are willing to take his side or not. Refusing to do so, even for sound prudential reasons, will be treated as proof of a lack of nerve. When there’s a big fat juicy norm like the filibuster that’s sitting in Trump’s crosshairs, a loyal Republican must pull the trigger or be thought a RINO.

For grassroots Democrats, eliminating the filibuster is part of a broader rebellion against minority rule by the GOP. Despite having won the national popular vote just once since 1992, Republicans have prevailed in three presidential elections and are poised to win again with a minority of the vote this fall. Democrats have controlled the White House for two-thirds of that time, yet it’s conservatives who control two-thirds of the Supreme Court. The nature of the Senate is such that states with a fraction of the population of Los Angeles County enjoy the same amount of representation as the entire state of California. Amid all that, allowing Republicans to go on roadblocking Democratic legislation in the Senate is tantamount to abetting a grand-scale GOP veto over the preferences of the great American majority.

Left and right may have different reasons to oppose the filibuster but one thing that unites them, I think, is the logic of hyper-polarization. In a less partisan era, when the stakes of politics are low, the cost of the other party blocking your agenda in the Senate is similarly low. In an era like ours, when both sides catastrophize manically about governance by the other threatening the country’s existence, the urgency to lock in your side’s agenda by hook or by crook is intense. If every election is a “Flight 93 election” then by definition your representatives in the Senate should do whatever’s necessary to break into the cockpit and take command.

There’s also a cold, hard logical calculation to moving first in nuking the filibuster—namely, status quo bias.

Conventional wisdom has it that each party secretly wants the other to be the first to go nuclear. That way, it can attack the first-mover for its affront to norms and capitalize legislatively once it regains the majority by retaining the new 51-vote threshold. But Democrats’ eagerness to ditch the filibuster proves that thinking is outdated, just as it proved outdated for judicial nominees more than a decade ago. The benefit of going first and getting your preferred policies on the books is that American voters will gradually adapt to them and normalize them as the new status quo. Later, when the out-party takes power and moves to repeal or reform those policies, it may find that voters have gotten used to them and will resent the effort to upset their new expectations.

That seems especially likely to happen with abortion. If Democrats eliminate the filibuster first and codify the Roe regime on abortion, Republicans might find voters unhappy about subsequent GOP efforts to roll back that law. But if Republicans eliminate the filibuster first and enact a middle-ground 15-week ban, Democrats might find voters wary of subsequent liberal efforts to extend abortion rights through the duration of pregnancy.

Whoever sets the baseline on policy has an enormous advantage in making sure that policy endures. That’s the story of almost every entitlement America has ever created, most recently and notably with Obamacare.

So, it’s settled then: The filibuster is dead next year no matter which side wins, right?

Eh, not really.

We start as we often do, with math. How likely is it that either party will control both chambers of Congress and the White House in 2025, the only scenario in which eliminating the filibuster would make sense?

Not very.

For Democrats the odds are close to zero, as the Senate map this fall appears too difficult for them not to lose a few seats. The odds of a GOP takeover are better with Trump leading in presidential polls, but the tiny advantage Republicans have in the House and the comic dysfunction of their conference makes it easy to imagine the lower chamber flipping. Especially, perhaps, if Trump is en route to a second term: Voters who worry about what he might do with power have an obvious reason to make sure the lower chamber of Congress will provide a check on him by electing Democrats.

Let’s say Republicans do win back control of the government, though. Then the filibuster is dead, yes?

Maybe not. It depends on how many Senate seats they end up with. Contrary to popular belief, Trump doesn’t yet own 100 percent of the Republican Party. Among the sliver of opposition that remains are Susan Collins and Lisa Murkowski, both of whom voted to convict him at his second impeachment trial, both of whom supported Nikki Haley in this year’s primary, and both of whom have enough crossover support in their home states to make them viable electorally despite MAGA antagonism.

Oh, and both of them are pro-choice. If the GOP ends up with 51 seats and moves to end the filibuster for the sake of passing a 15-week abortion ban, Collins and Murkowski might slide into the Manchin and Sinema roles of the next Congress. Even 52 seats wouldn’t guarantee the end of the filibuster depending on who the 52nd Republican in the Senate is. Trump enemy Larry Hogan stands a chance of winning in deep blue Maryland, and he almost certainly won’t join an effort that would infuriate the majority of voters in his home state.

There are other reasons to think Republicans might not push as hard to end the filibuster as we assume.

Although populists should, and will, prefer to see Trump’s policies formalized in federal legislation, an authoritarian movement built around a messianic strongman is inevitably more comfortable with executive action than it should be. Some Republicans might conclude that it doesn’t matter what the Senate does or doesn’t do because the GOP is never leaving power; others might reason that it’s actually better if the Senate doesn’t act, as the RINOs there would inevitably water down Trump’s agenda in doing so. Cynical types might even prefer to keep the filibuster around as a meaningless nod to norms and proper procedure to placate normie Republicans as Trump goes about wrecking the executive branch.

It’s also possible, if not likely, that traditional Republicans like Thune will decide that defending the filibuster is a hill worth dying on if Trump makes a strong push to end it. The reason is simple: The right has more to lose in the long run than the left does from ditching the 60-vote threshold because Democrats have a more robust policy agenda than Republicans do. The easier it is to enact legislation, the better it is for the side with the more ambitious program.

A party like the GOP that now exists mainly to keep the other party out of power doesn’t gain as much from procedural reforms that remove obstacles to wielding power. Granted, ending the filibuster would theoretically make it easier for Republicans to repeal new Democratic laws that were passed in the prior Congress, but I direct you again to my point about status quo bias and Obamacare. The “one-way ratchet” is a real thing, as every conservative should know.

As if all that weren’t enough, Republicans keen to end the filibuster will shortly run into an electoral problem. If they can’t muster the votes to get rid of it in 2025 or early 2026, they’ll confront the possibility of another Trump-fueled Democratic wave election in the 2026 midterms and/or a Democratic presidential takeover in 2028. The closer they get to losing power, the weaker the argument for eliminating the 60-vote threshold will become. If they want to do it and reap the benefits, they won’t have much time.

What about Democrats, though? If, against all odds, they control the entire federal government next year, is the filibuster dead for sure?

It’s probably dead, but not surely. We shouldn’t assume from the fact that Manchin and Sinema have been outspoken in the filibuster’s defense that they’re the only members of their conference who support retaining it. Some of their colleagues have a habit of “hiding” behind them on tough issues: A Senate Democrat who disliked the left’s voting-rights reforms or the ambitions of the Build Back Better plan could nonetheless safely vote yes and please progressives in their base knowing that the legislation wouldn’t advance thanks to Manchin’s and Sinema’s opposition.

Without those two in the Senate next year, there’ll be nowhere left for those colleagues to hide. So what will, say, Jon Tester of deep-red Montana do if Chuck Schumer asks him to provide the deciding vote to end the filibuster in the name of resurrecting Roe v. Wade as a federal statute?

I think it’s even possible that some moderate Democrats will begin to develop a strange new respect for the filibuster as the long-term threat from a radicalizing, illiberal grassroots right rises. It’s one thing to prefer a lower 50-vote threshold when there are two normal-ish parties and your side has the more ambitious legislative agenda among them. It’s another thing to prefer it when you’re no longer sure what the other side is capable of and what the Jacobins who’ve seized control of it might want to do with power in five or 10 years’ time.

“The Jacobins will end the filibuster when they have the chance no matter what Democrats do!” a liberal might reply, fairly enough. But this is the point of the Katie Porter and Kathy Hochul examples from earlier: If, when the time comes, you want the public to see the Jacobins for what they are and to turn against them, it would help a bunch not to normalize their excesses preemptively with your own behavior.

So, while the filibuster is doomed eventually, it might spend a bit more time on death row than we think.

And when it does eventually go, we might not end up with the sort of legislative ping-pong from one congressional term to another that everyone’s expecting.

You know what I mean by “ping-pong.” First the Democrats codify Roe, then the Republicans take over Congress and codify a 15-week ban, then Democrats take over again and re-codify Roe again, and so on. That would be absurd—although, it must be said, pretty classically democratic.

I don’t think that would happen long-term. Eventually the parties would converge on a broadly popular position, with the next majority concluding that tinkering with the extant policy is more trouble than it’s worth. If voters warmed up to a new 15-week ban, and polls reflected that, Democrats might think better of spending political capital to repeal it and extend legal abortion to the moment of crowning.

Convergence on a broadly popular position would be a classically democratic outcome too. So, to the extent that our politics remains a process for enacting policies that most voters prefer, ending the filibuster might not be the disaster most of us imagine. And to the extent that it’s become a battlefield for performative culture-war jihad, in which the point is simply to own the other side by erasing its governing legacy to the fullest extent possible, uh oh.

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