People are really blowing the far left out of proportion and it's empowering them. There is absolutely no way there are 51 votes for Medicare for All, Defund, or any of the other boogeymen. The moderates and the Democratic Party ad a whole have huge electoral incentives to ignore that stuff. Meanwhile, since they can't pass half the stuff that would improve the brands of the party or the moderates, all that's left is asinine public fighting, giving the far left more airtime.
Most Senators don't want to be the ones to vote against M4A, to avoid primary challenges. The current situation, where they can claim to support it but not actually have to get it done, works out well for them.
But most Democratic senators don’t even claim to support it! The number of Democratic senators who co-signed Bernie’s Medicare for all Bill is in the teens
Sure, but they don't exactly vocally oppose it, either. They just kind of let it sit there. They'd certainly prefer it never coming up at all, to a situation where they'd have to take a position pro or con.
I have a hard time believing that it would be difficult for senators who publically oppose m4a to vote against it. In any case, Schumer, Clyburn and the other Dem Senate leaders wouldn't necessarily make Dems take that vote - it's more likely they would bring a more popular bill to the floor that wouldn't endanger their members in unsafe seats.
Which are the Democratic senators that publicly oppose M4A? I'm not sure that I've heard any say that people shouldn't be allowed to buy into Medicare if they choose, though a large number are against ending private insurance. As long as no definite M4A bill comes up, they don't have to be publicly for or against anything.
Manchin’s support for the filibuster makes no sense. He could be the tipping point vote most of the time. He could bring tens of billions in pork to his state, a place where that kind of money would go a long way. Instead, he prefers paralysis. Why?
they got rid of ear marks. so you cannot attach a highway or school to a major piece of legislation. So as the 50 senator you cant bring home pork. David Plots formally of Slate wrote about this.
Sure he can't bring stuff home with ear marks but he certainly could with things that are technically universal but disproportionately apply to his constituents. Like he can throw in some rural broadband provision into any number of pieces of legislation and sure its not "for wv" per se, but he can sure as hell say it to his constituents.
As someone in a parliamentary country, it's astonishing that the case can't be expressed as simply as "the people who are elected should have the power to govern, and then be held accountable for how that power has been used at future elections".
Something you alluded to but wasn't sure you outright meant was that whilst the senate's dyfunction was initially driven by polarisation, it may now itself be driving/sustaining that polarisation, would be interested to know if that was subtext or text.
Another thought - to what extent would culture war bullshit be less effective if a governing party has a record, which they clearly own, and can be accountable for at the polls? It's got to be better than this inside-baseball, he-said-she-said, procedural sausage-machine reporting from which Americans are somehow supposed to pick out which party is best representing their interests?
With a Presidential system, and the frequency of divided government, getting rid of the filibuster is still no guarantee that the people in power are able to govern. But it’s a start. Parliament or Bust!
The idea that the Senate is driving polarization is a great point. The gov't is actively choosing to do less and the way to get attention is to engage in pointless shit fights instead of bringing home goodies
Also, if an issue stagnates forever, people get more and more supportive of more extreme solutions to it, especially if the issue deteriorates over time. If people have to wait decades before they even get a bite at the apple they will push for a total solution, and a total solution might be more justified after the issue was neglected for so long and got worse.
In addition, gridlock means that the best way to demonstrate that you’re serious about an issue is if you endorse an extreme solution to it. Voters notice gridlock but they don’t always know why it’s there. Often times they may blame politicians who they think were insincere about the positions they took during the campaign. Advocating for more extreme and potentially alienating solutions is a way to demonstrate seriousness if nothing is actually being passed.
I mean the Senate encourages this attitude by not having even half the membership up each cycle - its deliberately designed to ensure people can't pass judgement on what the body as a whole has done.
I suspect that most Americans are pleased to have a government that most of the time isn't able to do very much. Americans in general don't trust their government and are suspicious of changes to the status quo. Every once in a while we get a big burst of legislation (e.g., 1964-5 and 2009-10) after which further change is resisted as these new ones are digested. And given the status quo bias, things that were resisted (like the ACA) become popular over time simply because they become part of the status quo.
We don't know what the US would be like with a European-type parliamentary system, but historically and culturally these other nations tend to have a lot more trust in government and expect it to do things, so for that reason I suspect a parliamentary system would not be a good fit for the US. Instead, we'll continue to muddle through.
Couldn't agree more. Here is analogy (though I admittedly know very little about baseball).
Let's say umpires widened the strike zone, and the batting average in Major League Baseball went from .248 to .148 What would happen? Singles (moderate legislation) would disappear because getting on base would be useless, and everybody would swing for the fences. That's what the rise of the filibuster has done. Now there is one inning called budget reconciliation where the the old strike zone is in place. So now we have a nine inning game, but you only need to watch the budget reconciliation inning, because that is the only inning when anything happens. And the temptation to do everything possible in that inning becomes irresistible. Lot's of base stealing in this inning - like we can never get a minimum wage passed in later innings, but it is allowed in the first inning if instead of just increasing the min wage (not allowed in budget reconciliation), we tax every company an absurd amount for every worker they have that makes less than the minimum wage (allowed). So the first inning is very uncivilized with lots of attempts to test the limits of the rules because it is the whole game. Baseball was already a slow boring game. Under the new rules, everyone becomes an asshole, and people stop watching or caring about 8 of the 9 innings because they are mostly useless. Also, there is another sports, Presidential politics and the judiciary. that everybody cares much more about because through executive orders and judicial nominations and stuff, you can actually score some points/goals/whatever.
Pretty good analogy, though I doubt there would be much base-stealing in the "reconciliation" inning. Net benefit is too low. (Actually, you're more likely to get more base stealing in the "big strike zone" innings because it raises the benefit of getting a subsequent hit.)
RE: McConnel not nuking the legislative filibuster--can anyone give an example of something the GOP would have wanted to do in 2017-2018 were it not for the filibuster? Meaning something Trump wanted, the House wanted, and 50+ senators wanted? And that the *only* reason it didn't happen was because daddy mitch said no?
I mean--they couldn't even get to 50 for their skinny ACA repeal! I just don't think there’s a lot of legislation that the entire Republican party even wants (other than reconcilable tax cuts) and *that’s* why the filibuster is still standing. If there was something they wanted to do, I don’t think they’d have cold over nuking the filibuster for it. I admit that Trump makes any kind of legislating impossible, but even if say they had had a 50+senate trifecta + president Romney and there was something they wanted other than cutting taxes, I feel like they’d just go for it.
Not that I’m disagreeing or anything with the post—lots of stuff I had never even thought of—but my main motivation for it is we’re going to feel pretty dumb when they do it to us #firststrike
This is why the filibuster has an asymmetrical impact. Tax cuts can be done with reconciliation, regulations can be relaxed by the White House, other regulations can be declared unconstitutional by the Supreme Court, and they can try to mandate a lot of their other policies through the courts.
And if Dems create a program Republicans dislike, they can defund it instead of actually repealing it.
Most of the stuff Republicans really want can be achieved outside of the context of a non-reconciliation bill.
On the legislative side ... I think they could have done a lot more damage on immigration issues.
But maybe a different way to look at the future risks ... Do both Kavanaugh or Coney Barrett get confirmed without the 50 vote reduction? I'm not close enough to it but the Miers nomination was withdrawn. Seems likely we'd have had at least one more moderate nominee.
Hmm true! But I guess I'm not so sure on immigration. I don't remember all the details but 2018 was going to have a DACA deal (DACA for ~$25 billion for the wall?) championed by Jeff Flake and other moderates, and Trump ultimately killed that deal. Basically, I don’t think “respect for the filibuster and senate institutions” or whatever is what stopped a stricter immigration bill that Trump would have signed. I just don’t see a whole lot that (1) Trump would want (2) house majority would want (3) Jeff Flake et al would want (4) scares me enough to think we want to filibuster on defense.
I hear you on the court stuff—if there’s no need for a 60 vote threshold, there’s no need for moderate nominees. But to me—the person who decided there’s no need for moderate nominees was Mitch McConnell in 2016. All that “this is an election year” talk was bogus and he was also on the record back then of saying they’d fill the seat if the shoe were on the other foot (and then they did).
I think the dems just need to game theory this. In my view, the other side has shown they’re willing to exert their power as far as they can within the letter of the rules without respect for “norms” and that they should do the same.
not really you have a few republicans like 5-10 who like immigration for "free market" reasons. Jeff Flake made a big deal about it. Marco Rubio has tried to do some moderate reforms etc. So I think even on immigration they would not have had 50 votes in the senate but those 5-10 senators would have been yelled at by their voters.
I guess the situation I'm imaging there is what does the early days of the Trump administration look like without a filibuster acting as *some* countervailing force. I think the EO travel bans could have taken a legislative route. IDK. Just one example. I think long term impact of the SC seats is a far more pressing concern.
I think Jeff Flake or Marco would have voted for the Wall and the difference is a 25 billon dollar construction project that no one wanted. it is a waist of money but the federal government waists money all the time. so not really a big policy shift. maybe if legislating was easy the wall could be part of an infrastructure bill.
I have no doubt Republicans would do stuff I hate with unified govt, but if the GOP wins unified government they should be able to pass legislation.
If the policies they pass are bad or unpopular, they'll lose the election and Dems can reverse. If the policies prove popular they'll stay, even if I a good liberal dislike it.
With the exception of voter disenfranchisement laws, I think most public policy should be controlled through the legislative process.
Elected Republicans aren’t super unified on immigration. Remember that a lot of Republicans wanted to pass reform in 2013, and even after Trump there wasn’t a lot of congressional appetite for his wall.
So even if you didn’t have the filibuster I’m not sure Republicans could’ve passed a super restrictive immigration bill.
Great post, Matt. But I wonder if you get the incentives wrong: for many pols, being able to grandstand (turbocharged by social media) while dodging accountability, because they don’t actually have to vote (filibuster), is the perfect formula, esp. these days if they’re on the right and don’t have much of a positive policy agenda of their own. What’s Susan Collins’s real motivation? Replacing the income tax with a VAT (or put your fave bold policy initiative here) or just staying in Washington so she can be fawned over back at the lobster roll lunches in Maine?
These obstructionist senators who mostly just want to hang on their prestigious gig as long as possible are missing the bigger opportunity - if a lot more bills passed, instead of just grandstanding, they could be bringing home the pork and then grandstanding at ribbon cuttings in front of new structures with their names. Arriving in Alaska at the Ted Stevens Anchorage International Airport - while he was the sitting senator - was a revelation in that regard....
I confess I got bored reading this not because I disagree but because of course I fully agree and so what? It's just an empty calorie argument. No one on our side really mounts a defense of the filibuster (except for Bill Scher, I guess), but it just doesn't matter because the political forces -- for whatever reason -- aren't arrayed in favor.
The problem isn't that you can't convince Joe Manchin. The problem is that you *have* to convince Joe Manchin.(*) We couldn't figure out how to beat Collins in Maine; we picked a bad candidate in North Carolina; we didn't do our best to defend Bill Nelson in Florida in 2018. Etc.
Yes I know the map is stacked against Democrats in the Senate but just a few years ago (in 2009) we had 60 votes (ok, briefly) which is far more than the Republicans have ever had. Has the world changed so markedly that we can't figure out how to get 55? And if we get 55 then we don't have to worry about moderates like Manchin and Synema acting against what we think are their interests.
So figure out how to win a few more Senate seats (and please, no fantasies about DC and Puerto Rico for now) and then let's move to kill the filibuster. Until then, just use the tools we have at hand.
(*) And I will say nothing bad about Manchin. It's because of his miraculous ability to survive in West Virginia that McConnell is not Senate Majority Leader. Thank you, Joe!
The trend line in Texas is good for Dems. I wouldn't be surprised if it votes Democrat for President in 2028, even if not in 2024. Just two years ago Beto came within 2.5 points of winning the Senate race. Could Beto (or a "Beto") beat Cruz in 2024? Why not? And I suspect that Senator would be for killing the filibuster.
To some extent I agree with you, dems should obviously just try to win as many seats as possible. But given the skew of the senate, getting 55 senators as you say is definitely no certain way to get rid of the filibuster, given those 5 additional dems are going to likely be very Sinema/Tester/Manchin-esque.
I'm happy to accept gifts from the Republicans. Since the map is stacked against the Democrats, we have to perform better than they do. We really have to figure out how to up our game. Whether it's a reasonable standard, it's the kind of thing we need to do to get a substantial enough majority to make the other changes we want to implement.
I’ve been wondering lately if the Democrats would have ended the filibuster back in 2009 if they hadn’t had 60 seats in the Senate, making it possible to pass the ACA.
I very much doubt it. Most of the institutionalists at the time wanted to keep the filibuster. It's only as the years have dragged on since then that it's become clear that it really isn't worth keeping.
Yeah. It took 8 years of Obama and then Republican hypocrisy during Trump for a lot of institutionalist Dems to accept that the GOP will abuse Senate rules in bad faith. Although maybe the issue gets forced to come to a head if Obama couldn’t get the ACA or any stimulus through.
I listened to your podcast with Molly Reynolds and one thing that stuck out to me was her description about how part of why the filibuster changed in the 70s was that the Federal government was expanding into more and more areas and so there was just more stuff to filibuster.
Ezra Klein has made the argument that the filibuster should be reformed to allow for whatever party wins to govern and then the public can judge them on its merits. But in practice, both Matt and Ezra don't follow this through. Take for example the $15 minimum wage increase. States are free to pass legislation to increase the minimum wage, and some have. But others have chosen to not pass that legislation and their constituents are able to hold them accountable for it. Instead of supporting that, they are both strongly in favor of national legislation that would raise the minimum wage. Which in effect requires a state like Michigan to raise its minimum wage at the behest of the voters in New York instead of it remaining with the voters in Michigan. Why does this need to be nationalized?
Which brings me to my broader concern about the filibuster. If Progressives/Democrats want more and more issues to be nationalized, it seems very appropriate to me that there be a super majoritarian rule. Congress should need for a majority of the places where people to live to accept a rule that will affect them - otherwise leave it to the state to decide. If New York as a primarily urban state wants to pass laws that benefit urban areas, then they should do so. But I don't understand why a state like West Virginia should have to follow the same rules when the majority of their population isn't urban.
States are often heavily gerrymandered and so they don’t necessarily provide good outlets for public input, and it makes sense for there to be minimum nationwide standards on things given how we have open borders and trade between states.
Why can't we be one country with 50 states like we have for most of our existence? I don't understand the push to nationalize things. It just makes the non majority have fewer options of recourse. While there are some absolutes, so many of these issues are educated best guesses about the right thing to do.
Matt -- Any thoughts on how big of a risk abortion rights would face without a filibuster? Part of me thinks the GOP simply want the energizing aspects of the abortion issue without actually acting on it -- so this calls their bluff. Another part of me looks at the accelerating pace of restrictions in red states and is terrified.
I mean, abortion is going to become a big national conflict regardless, given Trump’s Supreme Court picks.
I think we need to accept that serious abortion restrictions and bans are coming over the next decade. We should focus on preparing to fight those and portray them as extreme and unpopular, so we can ride a backlash.
If Republicans want to make abortion the big national issue in a post-Roe world, I say let them. The politics of this will be fundamentally different when we’re talking about full bans with prison sentences attached instead of just talking about late term abortion edge cases that make people feel uncomfortable.
That's debatable. Gonzales v. Carhart ruled that a federal ban on (certain types of) abortions was constitutional; if Roe was overruled, I don't think there'd be anything stopping Congress from passing a national ban if it had the votes. https://en.wikipedia.org/wiki/Partial-Birth_Abortion_Ban_Act
The law at issue in Gonzales v. Carhart was based on Congress' power to regulate interstate commerce, but whether the commerce power permits Congress to regulate abortion wasn't decided in Carhart. It simply decided that, assuming Congress does have commerce power to regulate abortion, that law there was not incompatible with the Roe v. Wade line of precedent.
I’ve seen some articles cite the statistics of the 41M lower population represented by 50 GOP senators than 50 Dem senators. However, I think there is an even more interesting data point that emphasizes how much worse it is when you consider that 41 GOP senators can block most legislation with the current filibuster rules. The relevant statistic in this view would be:
42 Senators representing less than 23% of the U.S. population can effectively block any legislation using the filibuster.
See details below:
State Population Percent of U.S. population GOP Senators
This sounds really good until you remember that there are Republicans in blue states. More people voted for Trump in California than in Texas. Are the Senators from California representing those constituents? No! The State of California has more unrepresented constituents in the Senate than any other state. Why are they doing that so badly?! Because its not designed for them to represent constituents, its designed for them to represent the "State of California."
That's interesting. I don't know why I never did that simple math but when you put it that way... Probably also a good argument for a national popular vote election for President.
Yes but I think this help illustrate that even if Democrats eventually win the Senate seats in TX, FL, PA, OH, NC, then Dems still wont have a filibuster proof majority despite representing states with 250+ million people vs. GOP representing states with 75 million people (77% vs. 23%).
This is the same thing as "the presidency could be won with 11 states. 78% of the states could vote against someone and they could still win the Presidency! Isn't that terrible?!"
The reality is that in both cases I think it much more likely that if you win those states, you carry a bunch of other states as well making this a moot point.
This isn't just counting states though, it's counting people represented within states. And my main point is that the combination of the antidemocratic nature of the senate (2 senators regardless of population) and the filibuster 60 vote threshold is particularly egregious.
If 40% of the states don't want to do something nationally, then you might want to just to do it by state. Someone said something about Make Blue States great again.
A hypothetical perverted by the reality that it's functionally impossible for Democrats to win legislative majorities in a broad swath of states due to gerrymandering. Nothing screams functioning democracy like Michigan being solely controlled at the statewide level by Democratic politicians but having a 15 point Republican bias in the median state senate seat so it's functionally impossible for voters to support something as simple as a guaranteed right to family planning or a good public education.
Those aren’t random states. Most of those states have either voted Dem recently or they’re trending towards becoming more competitive. A universe where the Dems win those but still don’t get to 60 is plausible.
Florida and Ohio are trending away from Dems with PA and possible MI as well - on a presidential level and the MI senate race was the closest potential loss Dem's in the country. Texas was trending against Cruz cause he's...fill in your preferred descriptor for pointless stupidity. Heger lost by 10 points. Dem's have been saying Texas is trending blue for a while, but would like to see a Dem win a statewide election at any level before I'm convinced.
I think this a fair analysis. I also think you're discounting the possible here of winning more seats in these states. This is far from deterministic. Baldwin just won in 2018 and Johnson is up next. And again ... WE JUST WON TWO SEATS IN GEORGIA!!! So that has to count for something.
Georgia's two senate seats are literally the 49th and 50th if you were to stack up Senate seats by 2020 PVI. Cool we got a Senate majority but the all-caps hysteria that's become commonplace as a result is one of the best subjective indices of how absurd the Senate map is for us.
California senators are representing the majority their voters, who are also Democratic. However, they are not representing the republican voters in their state, because those voters want different representation, solutions, etc.
You may disagree with this view, but I think it holds pretty true to how our system runs. I don't think those senators are thinking/choosing 60% of their votes based on Democratic values and 40% of Republican values. They're going 100% Democratic values which means that the 35-40% of the voters who disagree don't have representation in the Senate. This is true of every constituency that is district FPTP, but significantly more impactful for larger districts like entire states.
it's worthwhile noting that he filibuster and some other legislative roadblocks have limited pork that would normally go to benefit a community like my own, deeply conservative Central Valley in California that is routinely ignored for obvious reasons by Senators.
What's become clear to me is how much more screwed we would have been in the short- and medium- term future had Ossoff and Warnock lost their Senate races. Democrats would have been in a miserable position on cabinet picks, and the country would have been in a miserable position on relief. No cards to play for Dems. No leadership positions. Impeachment shelved. Filibuster reform not even uttered. Just deep depression for anyone interested in functioning government. Extremely consequential two Senate races, more so than I originally thought.
If David Shor's hypothesis is correct, the Dems are going to either be a hopeless minority in the Senate by decade's end or a far more conservative party, either outcome is bad.
Democrats are going to need to embrace governing through the Executive Branch (nullification via non-enforcement of bad laws, aggressive use of pardon power, etc). We represent the national majority. There is no reason we should feel guilty about governing as the majority faction. I could care less if GOP gets a bullshit majority because of stupid state lines.
Donald Trump was rightly reviled for attempting to go outside the constitutional framework. Yet here you are articulating for Democrats to do the same. And "we're the majority" is a poor excuse to do so. It would be easy enough for Republican's to come in and say "we're the majority" on a number of issues and you would appropriately scream bloody murder if they ignored the law. Don't become the thing you oppose.
I need to read the article, but I don't think either is likely. Democrats can and will win Senate majorities regularly, just like they've done this cycle. Also, do we really think democrats as a party will ideologically backtrack to some weird 90s neo-blue dog conservatism? I don't understand this hypothesis frankly. Just look at what Biden is doing and the voices he's elevating! Progressive as fuck.
Unsolicited writing advice: stop using 'normie.' The mild derogation is offputting. It also slows down my reading because I have to check whether you are making an ad hominem argument.
What do you think is a better term? I think it’s a useful word for talking about people who have an average level of interest or disinterest in the topic being discussed.
Normal or ordinary could work but they imply that the people in the conversation are abnormal in a bad way. But everyone has interests where they are not “normies”, so it’s not a negative.
People are really blowing the far left out of proportion and it's empowering them. There is absolutely no way there are 51 votes for Medicare for All, Defund, or any of the other boogeymen. The moderates and the Democratic Party ad a whole have huge electoral incentives to ignore that stuff. Meanwhile, since they can't pass half the stuff that would improve the brands of the party or the moderates, all that's left is asinine public fighting, giving the far left more airtime.
Most Senators don't want to be the ones to vote against M4A, to avoid primary challenges. The current situation, where they can claim to support it but not actually have to get it done, works out well for them.
But most Democratic senators don’t even claim to support it! The number of Democratic senators who co-signed Bernie’s Medicare for all Bill is in the teens
Sure, but they don't exactly vocally oppose it, either. They just kind of let it sit there. They'd certainly prefer it never coming up at all, to a situation where they'd have to take a position pro or con.
I have a hard time believing that it would be difficult for senators who publically oppose m4a to vote against it. In any case, Schumer, Clyburn and the other Dem Senate leaders wouldn't necessarily make Dems take that vote - it's more likely they would bring a more popular bill to the floor that wouldn't endanger their members in unsafe seats.
Which are the Democratic senators that publicly oppose M4A? I'm not sure that I've heard any say that people shouldn't be allowed to buy into Medicare if they choose, though a large number are against ending private insurance. As long as no definite M4A bill comes up, they don't have to be publicly for or against anything.
A Sopranos finale of an article :)
Manchin’s support for the filibuster makes no sense. He could be the tipping point vote most of the time. He could bring tens of billions in pork to his state, a place where that kind of money would go a long way. Instead, he prefers paralysis. Why?
Being constantly in the news isn't obviously a good thing for a vulnerable Senator. You create a wealth of attack vectors.
It’s easier to run against Washington.
they got rid of ear marks. so you cannot attach a highway or school to a major piece of legislation. So as the 50 senator you cant bring home pork. David Plots formally of Slate wrote about this.
Easy fix, he says "bring back earmarks, at least for me, and then I'm on board with ditching the filibuster."
Sure he can't bring stuff home with ear marks but he certainly could with things that are technically universal but disproportionately apply to his constituents. Like he can throw in some rural broadband provision into any number of pieces of legislation and sure its not "for wv" per se, but he can sure as hell say it to his constituents.
Lack of rural broadband is a huge issue in many parts of the country- it's a big issue here in Wisconsin.
Agree 100%. He should scrap the filibuster and extract concessions for WV
As someone in a parliamentary country, it's astonishing that the case can't be expressed as simply as "the people who are elected should have the power to govern, and then be held accountable for how that power has been used at future elections".
Something you alluded to but wasn't sure you outright meant was that whilst the senate's dyfunction was initially driven by polarisation, it may now itself be driving/sustaining that polarisation, would be interested to know if that was subtext or text.
Another thought - to what extent would culture war bullshit be less effective if a governing party has a record, which they clearly own, and can be accountable for at the polls? It's got to be better than this inside-baseball, he-said-she-said, procedural sausage-machine reporting from which Americans are somehow supposed to pick out which party is best representing their interests?
With a Presidential system, and the frequency of divided government, getting rid of the filibuster is still no guarantee that the people in power are able to govern. But it’s a start. Parliament or Bust!
The idea that the Senate is driving polarization is a great point. The gov't is actively choosing to do less and the way to get attention is to engage in pointless shit fights instead of bringing home goodies
Also, if an issue stagnates forever, people get more and more supportive of more extreme solutions to it, especially if the issue deteriorates over time. If people have to wait decades before they even get a bite at the apple they will push for a total solution, and a total solution might be more justified after the issue was neglected for so long and got worse.
In addition, gridlock means that the best way to demonstrate that you’re serious about an issue is if you endorse an extreme solution to it. Voters notice gridlock but they don’t always know why it’s there. Often times they may blame politicians who they think were insincere about the positions they took during the campaign. Advocating for more extreme and potentially alienating solutions is a way to demonstrate seriousness if nothing is actually being passed.
I mean the Senate encourages this attitude by not having even half the membership up each cycle - its deliberately designed to ensure people can't pass judgement on what the body as a whole has done.
I suspect that most Americans are pleased to have a government that most of the time isn't able to do very much. Americans in general don't trust their government and are suspicious of changes to the status quo. Every once in a while we get a big burst of legislation (e.g., 1964-5 and 2009-10) after which further change is resisted as these new ones are digested. And given the status quo bias, things that were resisted (like the ACA) become popular over time simply because they become part of the status quo.
We don't know what the US would be like with a European-type parliamentary system, but historically and culturally these other nations tend to have a lot more trust in government and expect it to do things, so for that reason I suspect a parliamentary system would not be a good fit for the US. Instead, we'll continue to muddle through.
Couldn't agree more. Here is analogy (though I admittedly know very little about baseball).
Let's say umpires widened the strike zone, and the batting average in Major League Baseball went from .248 to .148 What would happen? Singles (moderate legislation) would disappear because getting on base would be useless, and everybody would swing for the fences. That's what the rise of the filibuster has done. Now there is one inning called budget reconciliation where the the old strike zone is in place. So now we have a nine inning game, but you only need to watch the budget reconciliation inning, because that is the only inning when anything happens. And the temptation to do everything possible in that inning becomes irresistible. Lot's of base stealing in this inning - like we can never get a minimum wage passed in later innings, but it is allowed in the first inning if instead of just increasing the min wage (not allowed in budget reconciliation), we tax every company an absurd amount for every worker they have that makes less than the minimum wage (allowed). So the first inning is very uncivilized with lots of attempts to test the limits of the rules because it is the whole game. Baseball was already a slow boring game. Under the new rules, everyone becomes an asshole, and people stop watching or caring about 8 of the 9 innings because they are mostly useless. Also, there is another sports, Presidential politics and the judiciary. that everybody cares much more about because through executive orders and judicial nominations and stuff, you can actually score some points/goals/whatever.
Pretty good analogy, though I doubt there would be much base-stealing in the "reconciliation" inning. Net benefit is too low. (Actually, you're more likely to get more base stealing in the "big strike zone" innings because it raises the benefit of getting a subsequent hit.)
Oh man, too bad Matt took the name "Slow Boring" already, because that would be a great name for a baseball blog!
RE: McConnel not nuking the legislative filibuster--can anyone give an example of something the GOP would have wanted to do in 2017-2018 were it not for the filibuster? Meaning something Trump wanted, the House wanted, and 50+ senators wanted? And that the *only* reason it didn't happen was because daddy mitch said no?
I mean--they couldn't even get to 50 for their skinny ACA repeal! I just don't think there’s a lot of legislation that the entire Republican party even wants (other than reconcilable tax cuts) and *that’s* why the filibuster is still standing. If there was something they wanted to do, I don’t think they’d have cold over nuking the filibuster for it. I admit that Trump makes any kind of legislating impossible, but even if say they had had a 50+senate trifecta + president Romney and there was something they wanted other than cutting taxes, I feel like they’d just go for it.
Not that I’m disagreeing or anything with the post—lots of stuff I had never even thought of—but my main motivation for it is we’re going to feel pretty dumb when they do it to us #firststrike
This is why the filibuster has an asymmetrical impact. Tax cuts can be done with reconciliation, regulations can be relaxed by the White House, other regulations can be declared unconstitutional by the Supreme Court, and they can try to mandate a lot of their other policies through the courts.
And if Dems create a program Republicans dislike, they can defund it instead of actually repealing it.
Most of the stuff Republicans really want can be achieved outside of the context of a non-reconciliation bill.
On the legislative side ... I think they could have done a lot more damage on immigration issues.
But maybe a different way to look at the future risks ... Do both Kavanaugh or Coney Barrett get confirmed without the 50 vote reduction? I'm not close enough to it but the Miers nomination was withdrawn. Seems likely we'd have had at least one more moderate nominee.
Hmm true! But I guess I'm not so sure on immigration. I don't remember all the details but 2018 was going to have a DACA deal (DACA for ~$25 billion for the wall?) championed by Jeff Flake and other moderates, and Trump ultimately killed that deal. Basically, I don’t think “respect for the filibuster and senate institutions” or whatever is what stopped a stricter immigration bill that Trump would have signed. I just don’t see a whole lot that (1) Trump would want (2) house majority would want (3) Jeff Flake et al would want (4) scares me enough to think we want to filibuster on defense.
I hear you on the court stuff—if there’s no need for a 60 vote threshold, there’s no need for moderate nominees. But to me—the person who decided there’s no need for moderate nominees was Mitch McConnell in 2016. All that “this is an election year” talk was bogus and he was also on the record back then of saying they’d fill the seat if the shoe were on the other foot (and then they did).
I think the dems just need to game theory this. In my view, the other side has shown they’re willing to exert their power as far as they can within the letter of the rules without respect for “norms” and that they should do the same.
Good points. All fair. It could certainly the Senate Republicans were the countervailing force. Your defense vs. offense makes a lot of sense.
not really you have a few republicans like 5-10 who like immigration for "free market" reasons. Jeff Flake made a big deal about it. Marco Rubio has tried to do some moderate reforms etc. So I think even on immigration they would not have had 50 votes in the senate but those 5-10 senators would have been yelled at by their voters.
I guess the situation I'm imaging there is what does the early days of the Trump administration look like without a filibuster acting as *some* countervailing force. I think the EO travel bans could have taken a legislative route. IDK. Just one example. I think long term impact of the SC seats is a far more pressing concern.
I think Jeff Flake or Marco would have voted for the Wall and the difference is a 25 billon dollar construction project that no one wanted. it is a waist of money but the federal government waists money all the time. so not really a big policy shift. maybe if legislating was easy the wall could be part of an infrastructure bill.
I have no doubt Republicans would do stuff I hate with unified govt, but if the GOP wins unified government they should be able to pass legislation.
If the policies they pass are bad or unpopular, they'll lose the election and Dems can reverse. If the policies prove popular they'll stay, even if I a good liberal dislike it.
With the exception of voter disenfranchisement laws, I think most public policy should be controlled through the legislative process.
I mean...if the travel ban was a law instead of an executive order, what would the difference be?
The fact that Trump did it by EO shows that legislation wasn’t required.
Just stickiness. Biden flipped it back on Day 1. If we don't win the two seats in Georgia maybe it would have carried through to 2022 or longer.
Elected Republicans aren’t super unified on immigration. Remember that a lot of Republicans wanted to pass reform in 2013, and even after Trump there wasn’t a lot of congressional appetite for his wall.
So even if you didn’t have the filibuster I’m not sure Republicans could’ve passed a super restrictive immigration bill.
Great post, Matt. But I wonder if you get the incentives wrong: for many pols, being able to grandstand (turbocharged by social media) while dodging accountability, because they don’t actually have to vote (filibuster), is the perfect formula, esp. these days if they’re on the right and don’t have much of a positive policy agenda of their own. What’s Susan Collins’s real motivation? Replacing the income tax with a VAT (or put your fave bold policy initiative here) or just staying in Washington so she can be fawned over back at the lobster roll lunches in Maine?
These obstructionist senators who mostly just want to hang on their prestigious gig as long as possible are missing the bigger opportunity - if a lot more bills passed, instead of just grandstanding, they could be bringing home the pork and then grandstanding at ribbon cuttings in front of new structures with their names. Arriving in Alaska at the Ted Stevens Anchorage International Airport - while he was the sitting senator - was a revelation in that regard....
Pork was eliminated a decade or so ago though.
Too much lawyer brain! (risk avoidance)
I confess I got bored reading this not because I disagree but because of course I fully agree and so what? It's just an empty calorie argument. No one on our side really mounts a defense of the filibuster (except for Bill Scher, I guess), but it just doesn't matter because the political forces -- for whatever reason -- aren't arrayed in favor.
The problem isn't that you can't convince Joe Manchin. The problem is that you *have* to convince Joe Manchin.(*) We couldn't figure out how to beat Collins in Maine; we picked a bad candidate in North Carolina; we didn't do our best to defend Bill Nelson in Florida in 2018. Etc.
Yes I know the map is stacked against Democrats in the Senate but just a few years ago (in 2009) we had 60 votes (ok, briefly) which is far more than the Republicans have ever had. Has the world changed so markedly that we can't figure out how to get 55? And if we get 55 then we don't have to worry about moderates like Manchin and Synema acting against what we think are their interests.
So figure out how to win a few more Senate seats (and please, no fantasies about DC and Puerto Rico for now) and then let's move to kill the filibuster. Until then, just use the tools we have at hand.
(*) And I will say nothing bad about Manchin. It's because of his miraculous ability to survive in West Virginia that McConnell is not Senate Majority Leader. Thank you, Joe!
the 55th Senate seat would be from Texas by pure PVI. The state is 9.9 points to the right of the country lol.
The trend line in Texas is good for Dems. I wouldn't be surprised if it votes Democrat for President in 2028, even if not in 2024. Just two years ago Beto came within 2.5 points of winning the Senate race. Could Beto (or a "Beto") beat Cruz in 2024? Why not? And I suspect that Senator would be for killing the filibuster.
To some extent I agree with you, dems should obviously just try to win as many seats as possible. But given the skew of the senate, getting 55 senators as you say is definitely no certain way to get rid of the filibuster, given those 5 additional dems are going to likely be very Sinema/Tester/Manchin-esque.
I'm happy to accept gifts from the Republicans. Since the map is stacked against the Democrats, we have to perform better than they do. We really have to figure out how to up our game. Whether it's a reasonable standard, it's the kind of thing we need to do to get a substantial enough majority to make the other changes we want to implement.
I’ve been wondering lately if the Democrats would have ended the filibuster back in 2009 if they hadn’t had 60 seats in the Senate, making it possible to pass the ACA.
I very much doubt it. Most of the institutionalists at the time wanted to keep the filibuster. It's only as the years have dragged on since then that it's become clear that it really isn't worth keeping.
Yeah. It took 8 years of Obama and then Republican hypocrisy during Trump for a lot of institutionalist Dems to accept that the GOP will abuse Senate rules in bad faith. Although maybe the issue gets forced to come to a head if Obama couldn’t get the ACA or any stimulus through.
I listened to your podcast with Molly Reynolds and one thing that stuck out to me was her description about how part of why the filibuster changed in the 70s was that the Federal government was expanding into more and more areas and so there was just more stuff to filibuster.
Ezra Klein has made the argument that the filibuster should be reformed to allow for whatever party wins to govern and then the public can judge them on its merits. But in practice, both Matt and Ezra don't follow this through. Take for example the $15 minimum wage increase. States are free to pass legislation to increase the minimum wage, and some have. But others have chosen to not pass that legislation and their constituents are able to hold them accountable for it. Instead of supporting that, they are both strongly in favor of national legislation that would raise the minimum wage. Which in effect requires a state like Michigan to raise its minimum wage at the behest of the voters in New York instead of it remaining with the voters in Michigan. Why does this need to be nationalized?
Which brings me to my broader concern about the filibuster. If Progressives/Democrats want more and more issues to be nationalized, it seems very appropriate to me that there be a super majoritarian rule. Congress should need for a majority of the places where people to live to accept a rule that will affect them - otherwise leave it to the state to decide. If New York as a primarily urban state wants to pass laws that benefit urban areas, then they should do so. But I don't understand why a state like West Virginia should have to follow the same rules when the majority of their population isn't urban.
States are often heavily gerrymandered and so they don’t necessarily provide good outlets for public input, and it makes sense for there to be minimum nationwide standards on things given how we have open borders and trade between states.
because we're one country.
Why can't we be one country with 50 states like we have for most of our existence? I don't understand the push to nationalize things. It just makes the non majority have fewer options of recourse. While there are some absolutes, so many of these issues are educated best guesses about the right thing to do.
Matt -- Any thoughts on how big of a risk abortion rights would face without a filibuster? Part of me thinks the GOP simply want the energizing aspects of the abortion issue without actually acting on it -- so this calls their bluff. Another part of me looks at the accelerating pace of restrictions in red states and is terrified.
https://www.khou.com/article/news/local/texas/texas-gop-lawmakers-pushing-to-restrict-abortion/285-f45396a2-4e38-407d-8fc7-d280f2cfde3e
I mean, abortion is going to become a big national conflict regardless, given Trump’s Supreme Court picks.
I think we need to accept that serious abortion restrictions and bans are coming over the next decade. We should focus on preparing to fight those and portray them as extreme and unpopular, so we can ride a backlash.
If Republicans want to make abortion the big national issue in a post-Roe world, I say let them. The politics of this will be fundamentally different when we’re talking about full bans with prison sentences attached instead of just talking about late term abortion edge cases that make people feel uncomfortable.
Abortion rights are controlled by state law and the Constitution. This is an area where Congress really doesn't have much power.
That's debatable. Gonzales v. Carhart ruled that a federal ban on (certain types of) abortions was constitutional; if Roe was overruled, I don't think there'd be anything stopping Congress from passing a national ban if it had the votes. https://en.wikipedia.org/wiki/Partial-Birth_Abortion_Ban_Act
The law at issue in Gonzales v. Carhart was based on Congress' power to regulate interstate commerce, but whether the commerce power permits Congress to regulate abortion wasn't decided in Carhart. It simply decided that, assuming Congress does have commerce power to regulate abortion, that law there was not incompatible with the Roe v. Wade line of precedent.
Couldn't the partial birth abortion ban just be expanded? It was upheld by the SC.
I’ve seen some articles cite the statistics of the 41M lower population represented by 50 GOP senators than 50 Dem senators. However, I think there is an even more interesting data point that emphasizes how much worse it is when you consider that 41 GOP senators can block most legislation with the current filibuster rules. The relevant statistic in this view would be:
42 Senators representing less than 23% of the U.S. population can effectively block any legislation using the filibuster.
See details below:
State Population Percent of U.S. population GOP Senators
Wyoming 578,759 0.18% 2
Alaska 731,545 0.22% 2
North Dakota 762,062 0.23% 2
South Dakota 884,659 0.27% 2
Montana 1,068,778 0.33% 1
Maine 1,344,212 0.41% 1
Idaho 1,787,065 0.55% 2
West Virginia 1,792,147 0.55% 1
Nebraska 1,934,408 0.59% 2
Kansas 2,913,314 0.89% 2
Mississippi 2,976,149 0.91% 2
Arkansas 3,017,825 0.92% 2
Iowa 3,155,070 0.96% 2
Utah 3,205,958 0.98% 2
Oklahoma 3,956,971 1.21% 2
Kentucky 4,467,673 1.36% 2
Louisiana 4,648,794 1.42% 2
Alabama 4,903,185 1.50% 2
South Carolina 5,148,714 1.57% 2
Wisconsin 5,822,434 1.78% 1
Missouri 6,137,428 1.87% 2
Indiana 6,732,219 2.06% 2
Tennessee 6,833,174 2.09% 2
Total 74,802,543 22.8% 42
This sounds really good until you remember that there are Republicans in blue states. More people voted for Trump in California than in Texas. Are the Senators from California representing those constituents? No! The State of California has more unrepresented constituents in the Senate than any other state. Why are they doing that so badly?! Because its not designed for them to represent constituents, its designed for them to represent the "State of California."
That's interesting. I don't know why I never did that simple math but when you put it that way... Probably also a good argument for a national popular vote election for President.
Even better would be Cardinal voting like Star or Cumulative. Let's make sure whoever gets elected isn't absolutely hated by 40%+ of the voters.
I would welcome all electoral changes in that direction.
Yes but I think this help illustrate that even if Democrats eventually win the Senate seats in TX, FL, PA, OH, NC, then Dems still wont have a filibuster proof majority despite representing states with 250+ million people vs. GOP representing states with 75 million people (77% vs. 23%).
This is the same thing as "the presidency could be won with 11 states. 78% of the states could vote against someone and they could still win the Presidency! Isn't that terrible?!"
The reality is that in both cases I think it much more likely that if you win those states, you carry a bunch of other states as well making this a moot point.
This isn't just counting states though, it's counting people represented within states. And my main point is that the combination of the antidemocratic nature of the senate (2 senators regardless of population) and the filibuster 60 vote threshold is particularly egregious.
If 40% of the states don't want to do something nationally, then you might want to just to do it by state. Someone said something about Make Blue States great again.
A hypothetical perverted by the reality that it's functionally impossible for Democrats to win legislative majorities in a broad swath of states due to gerrymandering. Nothing screams functioning democracy like Michigan being solely controlled at the statewide level by Democratic politicians but having a 15 point Republican bias in the median state senate seat so it's functionally impossible for voters to support something as simple as a guaranteed right to family planning or a good public education.
"...antidemocratic nature of the senate..."
What's anti-democratic about it? The people of each state vote for their senators.
By antidemocratic, I mean along these lines:
https://www.vox.com/2021/1/6/22215728/senate-anti-democratic-one-number-raphael-warnock-jon-ossoff-georgia-runoffs
Those aren’t random states. Most of those states have either voted Dem recently or they’re trending towards becoming more competitive. A universe where the Dems win those but still don’t get to 60 is plausible.
Florida and Ohio are trending away from Dems with PA and possible MI as well - on a presidential level and the MI senate race was the closest potential loss Dem's in the country. Texas was trending against Cruz cause he's...fill in your preferred descriptor for pointless stupidity. Heger lost by 10 points. Dem's have been saying Texas is trending blue for a while, but would like to see a Dem win a statewide election at any level before I'm convinced.
I think this a fair analysis. I also think you're discounting the possible here of winning more seats in these states. This is far from deterministic. Baldwin just won in 2018 and Johnson is up next. And again ... WE JUST WON TWO SEATS IN GEORGIA!!! So that has to count for something.
Georgia's two senate seats are literally the 49th and 50th if you were to stack up Senate seats by 2020 PVI. Cool we got a Senate majority but the all-caps hysteria that's become commonplace as a result is one of the best subjective indices of how absurd the Senate map is for us.
With Georgia flipping the "rural skew" is ~4%. That's hardly absurd.
"Are the Senators from California representing those constituents? "
Yes. Why do you contend they aren't?
California senators are representing the majority their voters, who are also Democratic. However, they are not representing the republican voters in their state, because those voters want different representation, solutions, etc.
You may disagree with this view, but I think it holds pretty true to how our system runs. I don't think those senators are thinking/choosing 60% of their votes based on Democratic values and 40% of Republican values. They're going 100% Democratic values which means that the 35-40% of the voters who disagree don't have representation in the Senate. This is true of every constituency that is district FPTP, but significantly more impactful for larger districts like entire states.
it's worthwhile noting that he filibuster and some other legislative roadblocks have limited pork that would normally go to benefit a community like my own, deeply conservative Central Valley in California that is routinely ignored for obvious reasons by Senators.
"42 Senators representing less than 23% of the U.S. population can effectively block any legislation using the filibuster."
I think that's fantastic.
What's become clear to me is how much more screwed we would have been in the short- and medium- term future had Ossoff and Warnock lost their Senate races. Democrats would have been in a miserable position on cabinet picks, and the country would have been in a miserable position on relief. No cards to play for Dems. No leadership positions. Impeachment shelved. Filibuster reform not even uttered. Just deep depression for anyone interested in functioning government. Extremely consequential two Senate races, more so than I originally thought.
If David Shor's hypothesis is correct, the Dems are going to either be a hopeless minority in the Senate by decade's end or a far more conservative party, either outcome is bad.
Democrats are going to need to embrace governing through the Executive Branch (nullification via non-enforcement of bad laws, aggressive use of pardon power, etc). We represent the national majority. There is no reason we should feel guilty about governing as the majority faction. I could care less if GOP gets a bullshit majority because of stupid state lines.
Donald Trump was rightly reviled for attempting to go outside the constitutional framework. Yet here you are articulating for Democrats to do the same. And "we're the majority" is a poor excuse to do so. It would be easy enough for Republican's to come in and say "we're the majority" on a number of issues and you would appropriately scream bloody murder if they ignored the law. Don't become the thing you oppose.
I need to read the article, but I don't think either is likely. Democrats can and will win Senate majorities regularly, just like they've done this cycle. Also, do we really think democrats as a party will ideologically backtrack to some weird 90s neo-blue dog conservatism? I don't understand this hypothesis frankly. Just look at what Biden is doing and the voices he's elevating! Progressive as fuck.
Unsolicited writing advice: stop using 'normie.' The mild derogation is offputting. It also slows down my reading because I have to check whether you are making an ad hominem argument.
Counterpoint: I like 'normie,' I understand its connotations, and it doesn't slow me down. Just one (other) person's opinion though!
What do you think is a better term? I think it’s a useful word for talking about people who have an average level of interest or disinterest in the topic being discussed.
"Muggle"
Fair question. 'Normal' might work, although it might have an unwanted positive valence. 'Ordinary?'
Normal or ordinary could work but they imply that the people in the conversation are abnormal in a bad way. But everyone has interests where they are not “normies”, so it’s not a negative.
I think Matt would consider himself a normie, I don't think it's derogatory
Todd Young is from Indiana (sadly).
"... which inspired the Senate to adopt the rule that 67 senators could cut off debate."
I think the rule was actually 2/3, so at that time it would be 2/3 * 96 = 64