Democrats: A Moment in History, Use It Wisely
Eliminating the filibuster would take us in precisely the wrong direction.
Getty Images (via The Hill)
Polls, betting odds and pundits are all pointing toward a substantial victory for Joe Biden. The New York Times poll showed Biden leading President Trump by a staggering 50 percent – 36 percent, a 14-point margin. The Real Clear Politics polling averages show a 9-point lead for Biden. He leads Trump even more among women voters. The Times poll also indicated strong leads in critical swing states Michigan, Wisconsin, Pennsylvania, Florida, Arizona and North Carolina, ranging from 6 to 11 points. These results point to an overwhelming Electoral College victory.
If the present polling holds up through election day, such a powerful victory in the presidential race would almost certainly fuel victories down-ballot. Key Senate races in Maine, North Carolina, Arizona, Colorado, Iowa and Montana all appear to be trending in the Democratic direction. All of this suggests Democrats gaining control of the Senate.
Democrats are feeling bullish about a surge to a victory, gaining the White House and the Senate while retaining the House of Representatives. This has triggered talk of eliminating the legislative filibuster in the Senate. The argument made is that even if Democrats win, the 60-vote requirement to end debate in the Senate will prohibit the passage of the progressive agenda.
I believe using a newly minted majority to steamroll the minority would be extremely short-sighted, even if initially successful.
You will hear the battle cry, “If we don’t do it, the Republicans will when they get the Senate back.” We’ve heard this before. It rings particularly hollow because Majority Leader Mitch McConnell (R-Ky.) and his Republican majority did not do so during the first two years of the Trump administration. Trump repeatedly demanded the end to the filibuster. On Twitter, he wrote, “If Republican Senate doesn’t get rid of the Filibuster Rule & go to a simple majority, which the Dems would do, they are just wasting time!” McConnell and the Republicans, who have denied little else to Trump, refused.
One might think that Democrats would have learned from having eviscerated the filibuster for judicial nominations. In 2013, they used a parliamentary slight of hand that we now call the nuclear option to sweep away the 60-vote requirement. If they are honest, Democrats will admit that this has been a terrible disaster. McConnell has fast-tracked 200 federal judges through the confirmation process, including 53 in the powerful circuit courts.
In the words of Mark Twain, “Whenever you find yourself on the side of the majority, it is time to… pause and reflect.” Any Democrat tempted to destroy the legislative filibuster, should consider the cost of giving a future GOP majority the power to realize a right-wing agenda and control the federal budget without any input from the minority.
Joe Biden knows this. During the debate in 2005, then-Senator Biden argued, “We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party… to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights, and they… would undermine the protections of a minority point of view in the heat of majority excess… Quite frankly, it is the ultimate act of unfairness to alter the unique responsibility of the Senate and to do so by breaking the very rules of the Senate.” He went on to say, “At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation… It does not mean I get my way. It means you may have to compromise. You may have to see my side of the argument. That is what it is about, engendering compromise and moderation.”
In 2012, when my book, Defending the Filibuster: The Soul of the Senate was published, then Vice President Biden — in a personal handwritten note — wrote, “It should be required reading for this session of the Senate. Great job.”
Some Democrats have opposed eliminating the legislative filibuster, including a few who regret their vote to eliminate the filibuster on judicial nominations. For example, Sen. Amy Klobuchar (D-Minn.) on NBC’s Meet the Press said, “I don't think we should've made that change, when we look back at it.”
A bipartisan group of 61 senators wrote a letter to the leadership (31 Democrats signed) in 2017 stating, “…[W]e are united in our determination to preserve the ability of members to engage in extended debate when bills are on the Senate floor.”
If Democrats do sweep to power in November, they will face an historic moment. Hopefully, Biden and his Congressional majorities will seek to use that moment wisely and reach out for greater consensus with independents and moderate Republicans.
Lasting major legislation like Social Security, Medicare, the Clean Air Act, the Clean Water Act, Medicare prescription drugs, the 1964 Civil Rights Act, the 1965 Voting Rights Act and many others were accomplished with large Congressional majorities. This has contributed to the staying power of these public policies.
Eliminating the filibuster would take us in precisely the wrong direction.
Richard A. Arenberg is Director of the Taubman Institute for American Politics and Policy and a visiting professor at Brown University. He is a former senior aide to Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years. He is the author of the award-winning "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress" and co-author of “Defending the Filibuster: The Soul of the Senate.” You can follow him on Twitter @richarenberg