Comment: Democrats may regret filibuster’s end if successful

With control of Congress tight the Republicans could wipe away decades of progressive legislation.

By David Super / Special To The Washington Post

When progressives discuss the filibuster these days, the focus is overwhelmingly on its role in blocking important parts of the Democratic agenda; notably the bipartisan commission to investigate the Jan. 6 attack on the Capitol and the voting rights measure known as the For the People Act.

Citing the filibuster’s longtime role in delaying or killing civil rights legislation, commentators on the left treat it as a worthless anachronism from a racist past. We are told that the only question is how to pressure the two holdout Democratic senators, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, to support the filibuster’s abolition (or at least its weakening).

This perspective is remarkably shortsighted. Although the filibuster has blocked central parts of the Democratic program in recent years, it has done the same for key features of the Republican agenda, too. At a time when the Republican Party is becoming ever more extreme, and when other constraints on irresponsible action have fallen away, the filibuster is more important than ever as a tool to protect hard-won legislative gains of the civil rights, environmental and consumer revolutions. It is the filibuster alone that protects the Endangered Species Act, the Corporation for Public Broadcasting and the Legal Services Corp.

To be sure, the filibuster does have a history steeped in racism. A filibuster killed a federal anti-lynching bill in 1922, for example, and opponents of civil rights legislation delayed a vote on the 1964 Civil Rights Act for 60 working days. Many institutions of the federal government, however, including Congress itself, have histories steeped in racism. Because we cannot change what has already occurred, we should instead determine what policy best serves vulnerable people going forward.

The filibuster — the requirement that 60 senators must agree to end debate before a bill can come to a vote — is particularly important in our era of political polarization. In bygone times, each party could be restrained by its moderates. Those days are gone: Moderates rarely survive Republican primaries, and the few who do rarely break from the party on key votes. Sen. Susan Collins, R-Maine, broke from her co-partisans on only one of the four most important votes of the past four years; on Obamacare but not the Trump tax bill, Justice Brett M. Kavanaugh’s confirmation or the first impeachment of President Trump. She was comfortably reelected nonetheless.

What’s more, in past decades, well-informed moderate swing voters punished either party for adopting extreme positions. Today, few swing voters remain, and most of those pay far too little attention to public affairs to notice or care if Republicans gutted pro-civil rights laws and other protections. Partisan news bubbles ensure that vast numbers of voters will never grasp the damage caused by such a legislative dismantling.

Before 2017, progressives might hope that the Supreme Court would step in against some extreme Republican legislation. That occurred at times, if rarely, over the past several decades, but the court’s current makeup suggests it is highly unlikely to happen now. Now, only the filibuster protects the legislative achievements of the New Deal, the civil rights era and the environmental revolution should Republican extremists retake Congress and the White House.

The filibuster also serves as a crucial counterweight against big-money politics. Holding a majority to block legislation backed by the corporate elite is difficult when millions of dollars in campaign contributions tempt legislators to vote with irresponsible banks, avaricious petrochemical companies or reckless lumber interests. Forty-one votes to block radical deregulation is a much more achievable goal.

Eliminating the filibuster for legislation would have very different effects compared with eliminating the filibuster for presidential appointments (a move I supported): Crucially, Senate Minority Leader Mitch McConnell, R-Ky., has been willing to allow his side to be hampered by the legislative filibuster. In contrast, the filibuster against judicial appointments effectively died in 2005 when then-Senate Majority Leader Bill Frist, R-Tenn., announced that he would eliminate it with the “nuclear option” unless Democrats acquiesced in the approval of some far-right appointees by President George W. Bush. Although Democrats postponed the filibuster’s formal end by doing as Frist demanded, once Republicans announced they would not honor the filibuster, it served no useful purpose for Democrats.

In 2013, then-Senate Majority Leader Harry M. Reid, D.-Nev., rightly concluded that Democrats should not be subject to a constraint that no longer bound Republicans and ended the filibuster for lower-court judges and executive branch nominees. Even if Reid had not done away with the filibuster in this context, then-Senate Majority Leader McConnell surely would have abolished it for Supreme Court nominees, in 2017, to ensure Justice Neil M. Gorsuch’s confirmation.

By contrast, McConnell has repeatedly shown himself a sincere supporter of the legislative filibuster. Despite controlling both chambers of Congress, Republicans’ only major legislative achievement during Trump’s first two years in office was the 2017 corporate tax cuts. McConnell was willing to squander other opportunities to advance the Republican agenda rather than end the legislative filibuster. (Had he eliminated the filibuster, Republicans might have enacted Trump’s proposals to sell off public infrastructure to private corporations and repealed, rather than underenforced, Title IX protections against gender-based discrimination in education.) Given McConnell’s proven restraint on the legislative filibuster, Democrats can reasonably expect that if they resist the temptation to eliminate it, it will be there for them when next they need it.

None of this might matter if progressives could be confident that today’s extreme Republican Party would never again have a hammerlock on the federal government. But the electorate is very closely divided, and with redistricting primarily within Republican control, Democrats’ thin House majority is in grave peril. The Senate maps in 2022 and 2024 do not skew particularly Democratic. And after more than 74 million voters sought to reelect Trump despite all he had done, no one can have any confidence what might happen if the 2024 Republican presidential nominee is an extremist with less personal baggage.

The best case for eliminating the filibuster would be if Republican voter suppression laws were making free and fair elections impossible in the future and if the Democrats’ voting rights proposals (contained in the For the People Act) would reliably preserve democracy. It is not easy to weigh these possibilities. Unquestionably, state laws limiting the right to vote are damaging and unfair. Also beyond dispute is that the voting rights legislation would help somewhat (although it may also be weakened in implementation by a conservative judiciary). But unless progressives are convinced that they can win elections if, but only if, these federal proposals pass, they run the risk of destroying the filibuster, still losing the 2022 and 2024 elections, and seeing decades of hard-fought progressive victories washed away in the first 100 days of the next presidency; including what remains of the Voting Rights Act of 1965.

Inventive senators over the years have often found ways to break filibusters. The tools include forcing obstructing senators to vote repeatedly to block legislation; adding features attractive to the holdouts’ constituents, including “fixes” to expose bad-faith objections; and breaking omnibus legislation into smaller pieces to force senators to vote against specific, popular reforms. To be sure, such approaches are more difficult in today’s polarized environment, but we have no evidence they are impossible. In any case, trying them carries less risk than eliminating the filibuster; a move that could cost Democrats dearly when the tables are turned.

David Super is a professor of law at Georgetown University.

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