Are We Really Still Playing This Filibuster Game?

Could you imagine being even a quarter as good of a grifter as Senator Kyrsten Sinema? Once a member of Ralph Nader’s Green Party (even working for Ralph Nader’s Presidential Campaign in 2000), she’s now — along with Senator Joe Manchin — the leader of “moderate Democrats” (read: Republicans before Barry Goldwater) in the United States Senate.

Recently, the major way she has separated herself from the rest of her party is by her refusal to vote for an end to the filibuster. On 1/25/2021, a spokesman for Sinema told The Washington Post that Sinema was, in no uncertain terms, “against eliminating the filibuster, and she is not open to changing her mind about eliminating the filibuster”.

Of course, the filibuster was the major reason why Barack Obama had some of the least active Congresses in United States history — especially after the Tea Party entered Congress in 2010 with no goal other than mindless obstruction — but Sinema promises us that maybe, just maybe, this time things will be different. It doesn’t matter that Republicans are already doing everything possible to block whatever Biden does — rather it be the For The People Act (which failed to get the needed number of votes for cloture just last night) or his incredibly popular infrastructure plan — actually allowing the man who won the Presidential Election to act as the President is apparently a radical idea now.

Sinema tried defending her position in an op-ed for The Washington Post published on 6/21/2021. Sinema’s entire argument is the same argument that has been made time and time again, if Democrats get rid of the filibuster now that doesn’t stop Republicans from getting into the majority later and, once they get that majority, they will do various bad things and likely just reverse whatever good things Democrats did. Sinema writes:

To those who want to eliminate the legislative filibuster to pass the For the People Act (voting-rights legislation I support and have co-sponsored), I would ask: Would it be good for our country if we did, only to see that legislation rescinded a few years from now and replaced by a nationwide voter-ID law or restrictions on voting by mail in federal elections, over the objections of the minority?

You mean like what Republicans are already doing on the state level all over the country? Sure, it’s on the state level and not a federal level, but it’s still happening and it’s not going to stop just because we still have the filibuster. In fact, the only tool Democrats have to stop it, that being the aforementioned For The People Act, failed last night because of the filibuster.

To those who want to eliminate the legislative filibuster to expand health-care access or retirement benefits: Would it be good for our country if we did, only to later see that legislation replaced by legislation dividing Medicaid into block grants, slashing earned Social Security and Medicare benefits, or defunding women’s reproductive health services?

To those who want to eliminate the legislative filibuster to empower federal agencies to better protect the environment or strengthen education: Would it be good for our country if we did, only to see federal agencies and programs shrunk, starved of resources, or abolished a few years from now?

For the sake of argument, we’ll ignore the fact that, on the condition that enough Republicans are elected to get a majority in the Senate, Democrats could easily re-instate the filibuster during a lame-duck session of Congress. Elections are held in early November and Congress is inaugurated in early January, meaning Democrats would have plenty of time to finish up their agenda before bringing back the old rules just before the new party takes power. Instead, let’s talk about the moving this hypothetical slightly farther in time than Sinema was willing too.

So Republicans take control of the Senate and undo everything the Democratic Senate did while also implementing various Republican dream-bills. Will this hypothetical new Republicans majority suddenly have control of the Senate forever? If not, then what is stopping a new Democratic majority from doing what the Republican majority just did — reversing everything the old majority did and implementing basically everything they’ve ever promised while campaigning for the majority. Basically, if a new Republican majority repeals everything the old Democratic majority did, all Democrats would need to do is wait until they get back in the majority and pass everything that has been repealed.

This already happens in the Executive Branch, might I add. On 1/20/1985, Ronald Reagan signed the Mexico City policy into law, which bans the federal government from funding any international group that provides abortions. President Clinton than rescinded the policy, the second President Bush re-instated it (the first President Bush had no need to considering he succeeded the man who first implemented it), President Obama rescinded it, President Trump re-instated it, and President Biden rescinded it. All of these changes took place within the first week of each administration, with Clinton, Bush, and Obama changing the policy on their second days in office. We can argue if a system like this is healthy (it probably isn’t) but it’s already happening and Senator Sinema is intentionally playing dumb by pretending it isn’t.

For that matter, Senator Sinema is ignoring another a massive hole in her proposal: What happens if the other side eliminates the filibuster? Remember, it was Mitch McConnell who got rid of the filibuster for Supreme Court Justices in 2017 in order to guarantee their were enough votes to confirm Neil
Gorsuch. It was also Donald Trump who said this on Twitter on 7/29/2017:

The very outdated filibuster rule must go. Budget reconciliation is killing R’s in Senate. Mitch M, go to 51 Votes NOW and WIN. IT’S TIME!

Trump also said this the same day:

Republicans in the Senate will NEVER win if they don’t go to a 51 vote majority NOW. They look like fools and are just wasting time — 8 Dems totally control the U.S. Senate. Many great Republican bills will never pass, like Kate’s Law and complete Healthcare. Get smart!

(Question for Sinema: Does this mean that getting rid of the filibuster now has bipartisan support?)

Sinema does address this point, but more to hand wave it away and say that her opinion on the filibuster would not change regardless (as if anyone thought she would suddenly become against it when its the other party seeking to abolish it):

And to those who fear that Senate rules will change anyway as soon as the Senate majority changes: I will not support an action that damages our democracy because someone else did so previously or might do so in the future. I do not accept a new standard by which important legislation can only pass on party-line votes — and when my party is again in the Senate minority, I will work just as hard to preserve the right to shape legislation.

Here, Sinema is confusing means with ends. Bipartisanship is a means — and not a bad means either — but it is not an end goal, the end goal is passing legislation that would help the American public.

It should be noted that many of the claims of “bipartisanship” from Democrats ring hallow when you look at their actions. Not a single Republican in either chamber of Congress voted for the American Rescue Plan, Joe Biden’s COVID-19 relief package. Despite that, all Democrats, Senator Sinema included, voted for it with no fears of “a new standard by which important legislation can only pass on party-line votes,” despite the fact that this was a case of important legislation passing on party-line votes.

Don’t you worry though, Sinema has the solution to all our filibuster issues — we should just talk about it more:

It is time for the Senate to debate the legislative filibuster, so senators and our constituents can hear and fully consider the concerns and consequences. Hopefully, senators can then focus on crafting policies through open legislative processes and amendments, finding compromises that earn broad support.

The fact is, Sinema is never going to find a bi-partisan solution to the filibuster because the filibuster, by its nature, is a partisan tool. Specifically, it is the tool of the minority party used to block anything the majority might want to do. Expecting the Republicans to find some compromise regarding the filibuster is basically expecting them not just to give up power, but also to give up the only tool they truly have to stop Joe Biden’s agenda.

For that matter, it’s not as if alternatives to the filibuster have not been suggested before. In 2013, Senator Tom Harkin tried to change Senate rules so the number of votes needed to declare cloture would gradually decrease with each day the bill was debated. Despite the fact that Democrats still held the Senate majority in 2013, Harkin’s idea was defeated. In 2012, Senator Jeff Merkley tried changing the rules so that, if the number of cloture votes were between fifty-one and sixty, cloture would not be declared immediately but would be declared after every Senator was done talking on the topic. Once again, this idea was defeated despite Democrats still having a sizable majority in the Senate.

In fact, there is a middle-ground between our current filibuster and the total end of Senate debate. It’s called rolling the filibuster back to what it once was, which is a tool Senators used by standing on the floor and talking as opposed to simply refusing to consider the legislation.

I mentioned above that filibusters are ended with cloture votes. Cloture is defined as the Senate acknowledging that there is nothing left to debate regarding the legislation and allowing the chamber to vote on it. Basically, voting against declaring cloture is the Senate saying that their is more to debate regarding this legislation and that enough of the Senate wishes to debate on it in order for debate to continue.

When Biden talks about bringing back the “talking filibuster,” he’s basically telling the Senate to put their money where their mouth is — and to start running their mouths if they really have something to say. (I guess it would be more accurate to say “put their mouth where their vote is.”) The current filibuster is declaring that you have something to say, but Senators are now using cloture votes that as substitute for if they support the legislation instead of using it as a means to further debate.

It should also be noted that the entire concept of the filibuster is based on a bit of a delusion. The fact is, the way the Senate discusses issues is not that comes close to debate. Especially after the introduction of C-SPAN, speeches on the Senate floor became less about convincing the other side and more about speaking to an audience. Tell me, has Mitch McConnell ever changed his mind on a bill because of a speech Bernie Sanders gave, or vice versa for that matter?

Honestly, what’s the point of the Senate “debate” these days? If Senators have an issue with a piece of legislation, they can bring it up on social media, write an article expressing their opinion that can be posted online, or talk about it on a news program. The fact is, every Senator knows exactly how they’re going to vote on a bill as soon as its introduced — sometimes even before then. The entire reason the filibuster even exists is because of this incorrect idea that debate will be the thing that wins out, and that simply is not the case. Sometimes, politicians are unreasonable, and you cannot reason with unreasonable people.

Here’s a fun story, the House of Representatives also used to have a filibuster. It was abolished in 1889 by Republicans after Democrats kept blocking everything the slim Republican majority attempted to do. (The election of 1888 was already one of the most divisive in American history, with Benjamin Harrison being one of five Presidents who won the Electoral Vote due to slim majorities in a handful of states, but who also lost the Popular Vote. Harrison was so unpopular that his opponent, Grover Cleveland, actually ran again four-years later and won, becoming the only President in American history who served two non-consecutive terms.) Republican House Speaker Thomas Brackett Reed — a man who was over three-hundred in weight, six feet and three inches tall in length, a good friend of William McKinley and Theodore Roosevelt, and a Civil War veteran who was known for making quips while on the House floor — got rid of it and, as former Obama speech writer David Litt points out in The Atlantic, it took the Congress Reed spoke for from non-productive to quite productive:

The 51st Congress, expected to accomplish next to nothing, instead became one of the most productive in history. With full control of government, Republicans passed the Sherman Antitrust Act to rein in big business; established land-grant colleges for Black students in the South; expanded pensions for Civil War veterans and their families; laid the foundation for the National Parks Service; created the beginnings of the federal immigration system; granted statehood to the Dakotas, Montana, Washington, and Idaho; and much more.

It should be noted that the House filibuster Reed abolished (although it was nicknamed “filibuster” in its time, the specific trick used is usually called “the disappearing quorum,” by political scientists) was slightly different from what we currently think of as a filibuster. Going back to Litt, here’s him explaining it:

[W]ithout a majority of lawmakers present, the chamber grinds to a halt. If the majority party was able to summon a sufficient number of its own members to Washington, it could pass bills as it pleased. But in a pre-aviation age, when lawmakers were frequently days’ or even weeks’ travel from the Capitol, gathering a quorum was extremely difficult.

At the time, you were considered “present” if you voted on a bill. If you did you did not vote on a bill, regardless of if you were standing on the House floor at the time, you were not considered “present.” If a majority of law-makers were not considered “present” at the time of the vote, the bill would be blocked.

Here’s what Reed did:

So at the start of the 51st Congress, Reed did something radical: He took attendance. After introducing a controversial bill that he knew would be filibustered, Reed began a roll call of yeas and nays in alphabetical order, starting with Texas’s Joseph Abbott and ending with Ohio’s Samuel Yoder. This would have been unremarkable, except for one unprecedented change to House procedure: If a lawmaker was physically inside the chamber, Reed marked him as present, whether he voted or not.

Oh, and if you thought they could simply leave the chamber mid-vote, Reed wasn’t having that either:

With the disappearing quorum suddenly unavailable to the minority party, its desperate members tried denying a quorum the old-fashioned way: by fleeing the House floor en masse. One lawmaker, Constantine B. Kilgore of Texas, kicked down a door and escaped. But the rest of his Democratic colleagues were blocked by locked exits or found hiding under their desks. After order was restored in the chamber, debate resumed.

The whole story is amazing and I would really recommend reading Litt’s full article. Seeing the Democrats in the House do everything possible to stop Reed, leading to this amazing back-and-forth:

“I deny your right, Mr. Speaker, to count me as present,” protested Kentucky’s James McCreary.

“The Chair is making a statement of fact that the gentleman is present,” replied Reed. “Does he deny it?”

Tell me, if the filibuster is so great, why is Senator Sinema not begging for its reintroduction in the House? We is she not advocating for the end of the Reed Rules and the return to how the House used to be run? The answer is simple, because Sinema understands that the Reed Rules were good, and that bringing them back would be a disaster for the United States.

In the same regards, the current filibuster is a disaster, and we should end it just as we ended the old system in the House way back in the nineteenth century.