I first came to the Senate eight years ago, at the beginning of President Barack Obama’s second term and when the Democrats were in the majority. At that time, I was anxious to reform or even eliminate the filibuster, the process whereby major legislation requires 60 votes rather than a simple majority to proceed toward passage. “It’s minority rule,” I said. “It enables obstruction.” “It’s not in the Constitution.” “Its historic use was to block civil rights legislation.” “It leads to gridlock and makes it impossible to get anything done.” In other words, I made all the arguments that people are hearing today.
But then a funny thing happened. I started to listen to several of my colleagues in the Democratic caucus who had been around a lot longer than I had and who had been in both the majority and the minority as the fortunes of the two parties waxed and waned over the years. Their warnings were stark and direct. They didn’t argue that the 60-vote threshold encouraged bipartisanship or some of the other high-minded justifications that we hear today; they simply made the point that what goes around, comes around; that the political makeup of the Senate would inevitably change (as it did two years after I arrived), and that today’s annoying obstructionism could be tomorrow’s priceless shield against policies we wouldn’t like or, more probably, in defense of policies we do like.
It is this fact that so many of my friends on the left seem to have forgotten or are willing to ignore in order to facilitate their agenda today. But the reality is that once the filibuster is gone, it will never come back. Why would a future majority ever impose such a limitation on its own power? And as succeeding Congresses swing dramatically between opposing ideological visions, so, too, would our laws. The Affordable Care Act could be eliminated or crippled, Medicare voucherized, social lifeline programs gutted or environmental protections compromised — only to have these policies reversed a few years later by a change in a handful of seats.
I found this cautionary warning reason enough to be careful about significantly changing the way the Senate functions, which elimination of the filibuster would entail. A double-edged sword, as my father used to say.
But this argument is sustainable only if the extraordinary power of the 60-vote threshold is used sparingly on major issues or is used in a good-faith effort to leverage concessions rather than to simply obstruct. If, however, the minority hangs together and regularly uses this power to block any and all initiatives of the majority (and their president), supporting the continuation of the rule becomes harder and harder to justify, regardless of the long-term consequences.
I should mention that I believe voting rights are a special case that we must address in light of the nakedly partisan voter-suppression legislation pending in many states. All-out opposition to reasonable voting rights protections cannot be enabled by the filibuster; if forced to choose between a Senate rule and democracy itself, I know where I will come down. As new Democratic Georgia Sen. Raphael Warnock noted on the floor recently, “It is a contradiction to say we must protect minority rights in the Senate, while refusing to protect minority rights in the society.”
As we enter this new Congress with a new president and a new Senate majority (barely), the question for me is how Mitch McConnell and his Republican colleagues will play their hand; if they are willing to work to find compromise and consensus on important initiatives (infrastructure, voting rights or immigration reform, for example), the importance of getting rid of the filibuster diminishes. If, on the other hand, they just say no, the necessity — and likelihood — of filibuster reform will only increase. That is to say, in large measure the outcome is in their hands.
Over to you, Mitch.