How Un-Democratic is the Filibuster?

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There’s a lot going on (understatement of the decade?) but with the slim Democratic Senate majority, this week we’re talking the filibuster!

The Filibuster?

TL;DR: Last week we talked about why reconciliation is such an important process – and that’s because of the filibuster. The filibuster is a loophole that a minority of Senators (just 41!) can use to kill legislation. 

Mitch McConnell used it to grind the Senate to a halt during Obama’s term when Democrats were in the majority, and it’s what he’ll use now if we let him. In sum: if Democrats do not “nuke” the legislative filibuster, 41 Republican Senators representing states containing just 20.7% of the population will be able to stop 50 Democratic Senators (plus the VP) representing states containing 64.2% of the population from passing legislation.

Okay. Let’s dig in.

The Filibuster: What It Is and Why It’s a Problem:

Basically, the legislative filibuster allows 41 Senators to kill legislation. 

In its original form, the filibuster required a senator (or senators) to literally speak until he (and at that time, it was always “he”) either dropped from exhaustion or the bill was tabled. Not having a procedural mechanism to end debate got cumbersome and time consuming. So, in the early 1900s, the “cloture” vote was created to end debate – and therefore any individual filibuster. Cloture requires 60 votes.

Today we don’t require the physical exercise of taking the floor (which in practice isn’t logistically difficult if multiple senators are involved, and just keeps the Senate from doing any business), but the cloture vote is still critical – and is why conversations about filibusters often center on the number 60.

And that is why it takes 60 votes – not 50 – to move legislation in the Senate. 

The Democrats currently have no plans to try to kill the filibuster altogether—they do not have the votes, as Joe Manchin (D-WV) has openly opposed the idea and others are leery—but they want to keep the threat of killing it to prevent McConnell and the Republicans from abusing it and stopping all Democratic legislation.

Why is the Filibuster Anti-Democratic?

The Senate is now split evenly in number of Senators, but that’s deceiving.

The 50 Senate Democrats represent dramatically more people – 41.5 million more, as a matter of fact.

That’s … a heckuva lot more people. To put it in context, 41.5 million is more than the combined populations of: Connecticut, Utah, Iowa, Nevada, Arkansas, Mississippi, Kansas, New Mexico, Nebraska, Idaho, West Virginia, Hawaii, New Hampshire, Maine, Montana, Rhode Island, Delaware, South Dakota, North Dakota, Alaska, Vermont, and Wyoming.

But in our current partisan Senate, legislation supported by 50 Democratic Senators (+ the VP) who represent over 60% of the country can be killed by 41 Republican Senators representing just 20.7% of the country.

To move legislation in the face of a filibuster threat, Senate Democrats – who already represent an overwhelming majority of the American population – stillhave to get 10 more Republican Senators to vote with them.

This may look like a procedural fight.

But it’s really a democracy fight.

We wondered – just how un-democratic could the Senate be? So we did the math:

Forty-one Senators can filibuster any legislation. That means the 42 Senators from the 21 smallest states representing just 11.22% of the country(36,961,175 people) can filibuster any legislation. 

Fifty-one Senators make up a Senate majority, at least as we’d typically think of it. (Yes, our current majority is 50 Senators + the Vice President, but for purposes of this exercise we’re looking for population represented by Senators themselves.) The 52 Senators from the 26 smallest states represent 57,863,040 people and just 17.56% of the country – but they would be enough to be a majority of the Senate.

The 60 Senators from the 30 smallest states represent only 79,467,673 people. That means you could create a filibuster-proof majority with Senators representing just 24.12% of the country. In other words, in this admittedly-extreme thought experiment, if 40 Senators representing 75% of the country wanted to stop legislation with the filibuster, they couldn’t.

Now, obviously, it is unlikely that we’ll see the population of Vermont and Wyoming in lockstep on many issues, so the partisan breakdown makes this thought experiment far fetched. But it does highlight the un-democratic nature of the Senate as an institution when, as we lay out above, a Senate “majority” can be made with Senators who represent just 17.56% of the population.

The continued demographic shift from rural states to more populous ones makes the Senate’s flaws even more stark – and consequential. 

And, as you can see from the above, adding the filibuster amplifies those flaws … dramatically.

So, the million-dollar filibuster question is: should we keep a relic that allows Senators who represent significantly fewer Americans to stop legislation that an overwhelming majority of Americans want – and need?

What Happens If We Keep it?

Frankly, we run the risk of losing the House, the Senate and, in four years, the White House if we let this un-democratic blockade continue. This is just not how our government is supposed to work.

The GOP has been running and winning on “ineffective government” for decades. Of course, they are largely responsible for the ineffectiveness of the government they condemn, but it is a winning message for them and pointing out their hypocrisy gets us nowhere with most of the electorate.

The vicious cycle goes something like this:

First, make government ineffective in domestic affairs. The GOP has been very good at doing this when they control the White House (e.g. “Brownie” as FEMA director and the debacle that was the Katrina response as a prime example). And, as we are all painfully aware, Mitch McConnell has made it his life’s work to keep the Senate from accomplishing anything meaningful while a Democrat is in the White House.

Second, use that ineffectiveness as the core of the argument that Democrats are incapable of governing and taxes are too high: if the government is not going to spend your money well, then it would be better if you kept more of it. Then cut taxes in a way that radically disproportionately benefits the already wealthy. 

Third, sit back and watch the reduced funding make government less effective at making lives better.

Rinse and repeat.

President Biden and Congressional Democrats know what they need to do to make government work for people. Their policy proposals might not be as progressive as we would like at times, but there they would be huge steps forward that would help the vast majority of Americans in very real ways.

However, while Democrats can pass a lot of good fiscal policy (taxes, spending, and the debt ceiling) via the “reconciliation” process (see last week’s Wonky News), they have to (a) be willing to do so and (b) understand that most everything that is not fiscal policy will be stopped by McConnell and 40 of his colleagues.

Democratic voters overwhelmingly want a number of actions that simply can’t pass with the legislative filibuster in place: Voting reforms; statehood for DC and Puerto Rico; police reformclimate change; criminal justice reform; reform of the federal judiciary… 

The list goes on and on, but all boils down to this: If the legislative filibuster remains intact, the entire Democratic agenda will be at McConnell’s mercy when it comes to any non-fiscal piece of legislation. This will ensure that the left is profoundly frustrated and that the middle and moderate right continue to see government as ineffective. Republicans will end up with turnout advantages that will be hard to overcome (see, e.g., the 2010 and 2014 elections for all the proof you need of this).

In other words, if we allow Republicans to use the filibuster to obstruct legislation, McConnell and the GOP will be able to point to unmet promises and continued ineffective governance as the reason to throw out House and Senate Democrats in 2022.

If the GOP flips either the House or Senate in 2022, they will grind things to a halt, allowing nothing more than status quo funding of the government (heck, even when they controlled the White House and Congress, the only meaningful piece of legislation they passed was a completely irresponsible tax giveaway).

The modern GOP does not want to govern, they just want to maintain power to ensure that taxes are not raised on their wealthy funders. 

It is time for the United States Senate to legislate based on the will of the majority of Senators, not a super-majority, particularly because one can put together 41 Republican Senators from states that contain less than 20% of the US population.

This is why the biggest mistake Democrats can make over the next two years is to allow the legislative filibuster to remain intact.

The problem is that its fate is in the hands of 1-2 specific Senators. Senator Joe Manchin of West Virginia and Senator Krysten Sinema of Arizona are both currently pledging to vote against “nuking” the filibuster.

But after multiple rounds of McConnell using it to successfully block popular legislation that would help their constituents … who knows?

The Sedition Caucus

But, we hear you saying, what about those eight senators and 139 representatives who voted to overturn the 2020 elections? What are we doing about those guys?

Great question!

Those members tried to install “their” president by disenfranchising millions of Americans – and in doing so spread the Big Lie that caused an insurrection and five people’s deaths. They should not be in Congress. But, until and unless they’re removed, we need to start doing the work NOW to make sure this is their last term.

Our Sedition Caucus project makes that easy for you. With it, you’re directly supporting the next Democratic challengers of each of the 147 Senators and Representatives that chose ambition over democracy. Your support will go to the campaigns of the Democratic challengers.

We may not know who those challengers will be yet, but we know they’ll need our support. 

You should join us now, and help spread the word! 

Yes! I want to send a message to the Sedition Caucus that I’m going to do everything I can to make this their last term and support their Democratic challengers!

Stay wonky!