Law & the Courts

If Democrats End the Filibuster, It Could Break American Politics

Senator Elizabeth Warren speaks with reporters at an event in Claremont, N.H., January 18, 2019. (Brian Snyder/Reuters)
Imagining a doomsday scenario for our republic

I know what some of you are thinking. You read that headline and immediately think, “alarmist clickbait.” First, no one’s ending the filibuster — at least not anytime soon. Second, even if the next Democratic Senate destroys the filibuster, what’s the big deal? The Republicans will make the Democrats look as short-sighted as Harry Reid when he nuked the judicial filibuster. Both sides will get their free shot at legislation.

Yes, both sides will get their free shot, and that’s exactly the problem.

Let’s go back to the first question for a minute. Is there a chance that if a Democrat wins the White House in 2020, and the Democrats win a narrow majority in the Senate, they’ll attempt to repeal the legislative filibuster? Will the pressure to implement a triumphant progressive president’s agenda be so overwhelming that Democratic senators will feel they have no choice? After all, there’s no real path to single-payer or gun control or key aspects of the Green New Deal absent the “nuclear option.”

In fact, that’s the very argument Jamelle Bouie makes in today’s New York Times, in a piece urging Democratic presidential candidates to “come out against the filibuster.”

We are long past the days of large, bipartisan majorities for ambitious, far-reaching legislation. Just three Republican senators backed the 2009 stimulus and not one voted for the Affordable Care Act. Critics see this as evidence these laws were too liberal, but in truth it reflects structural change in American politics. The parties are polarized and ideologically coherent; they offer fundamentally different visions for the direction of the country. A President Booker or Klobuchar might seek Republican support for their agendas, but they won’t likely find it. The legislative path for their policies — to say nothing of a Green New Deal or universal child care — will go entirely through the Democratic Party.

Bouie notes that most of the Democratic contenders don’t favor filibuster repeal, but Elizabeth Warren has said that “all options are on the table” and Kamala Harris has said she is “conflicted.” The Times’ David Leonhardt used Bouie’s argument as a launching pad to explore the pros and cons of filibuster reform. We are now in the midst of a live debate.

Let me begin by concurring with Bouie. Here we share an agreed upon set of facts, at least. Absent filibuster reform (or an unforeseen wave election in the Senate), our nation is presently too polarized and too closely divided to enact “ambitious, far-reaching legislation.”

But Bouie looks at those facts and says, “Step on the gas.” I look at them and say, “Tap the brakes.” If we think American electoral politics are fraught now, with more apocalyptic rhetoric filling the air each day, just imagine if each new election brought with it the realistic possibility of a truly fundamental swing in national policy. Single-payer might be passed in one presidential term and upended in the next. Gun-control regimes could swing wildly from president to president. And, critically, each swing would be accompanied by a convulsive, toxic political debate that deepened and intensified American polarization.

As a caution against filibuster reform, Leonhardt points to this tweet from Tufts political scientist Eitan Hersh:

Hersh is right, and his analysis applies to both parties. After all, the golden rule of modern American partisanship is do unto the other worse than they did unto you. Imagine, years down the road, sweeping California-style gun control passed after a particularly heinous mass murder, a law that would render millions of Americans criminals in an instant. It would trigger extraordinary resistance in red states and likely galvanize efforts at nullification.

Conversely, imagine Democrats’ panic at the fragility of their social-justice initiatives. The instant a new Republican president and Senate was sworn in, protests would paralyze the capital as the new legislature worked quickly to repeal everything from health-care legislation to new climate-change laws.

Moreover, let’s not forget that if the filibuster dies, it will die at a moment when our political culture remains in thrall to an endless cycle of Twitter-driven overreaction and outrage. The pressure for decisive legislative action in response to traumatic events will remain overwhelming. Ending the filibuster would mean that change would suddenly became not just possible but mandatory — and, given the extent of ideological polarization, dramatic, too.

Look at this chart. Ponder this chart. Memorize this chart:

Gone are the nice ideological bell curves of American generations past, when large majorities shared a degree of relative moderation. Welcome to an America that’s trending closer to a “U” curve, in which the two sides glare at each other from across a widening chasm.

Using temporary, slim majorities to push sweeping, nation-changing legislation is like playing with matches in a gasoline spill. At the very least, it’s a recipe for increasing bitterness, division, and instability in public policy. At worst, it’s a recipe for outright state-level defiance. I wonder: How would blue states respond if a slight GOP majority passed a national heartbeat bill, a law that would essentially ban abortions after six weeks of pregnancy? It’s easy to imagine a meltdown.

And don’t for one moment believe that overreach isn’t inevitable. If there is one thing that’s constant in modern American politics, it’s irrational partisan exuberance after every electoral win. Even close wins — like Trump’s in 2016 — usher in talk of “permanent realignments.” Partisans behave as if a mandate exists for their policies whether it actually does or not.

Finally, lest we despair of ever enacting meaningful reform, let’s not forget that patient and persistent public advocacy can still work. Just recently, Congress passed criminal-justice reform with huge bipartisan majorities — an important change that was politically unthinkable not very long ago. No, it’s not the national transformation that activists seek, but Pyrrhic legislative victories aren’t victories at all, and sweeping change absent sweeping consensus will inflict deep costs on the American body politic.

The filibuster helps lower the true stakes of American elections. It’s one of the last measures left in American politics that limits the centralization of power. And it helps ensure that significant reform carries with it significant public support. It’s a check on the very forces that could tear our nation apart. It must be preserved.

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