COMPASS: Senate Democrats try and nuke the filibuster

January 18th, 2022

Good afternoon from Capitol Hill. The House and Senate are both in session.

The Senate moves this week to a theatrical attempt to nuke the filibuster over election legislation. This is performative on two fronts. First, Democrats will attempt to nuke the filibuster on the grounds that Republicans are engaged in “voter suppression,” a talking point they will continue to defend in the face of the turnout for the 2020 presidential election being rated by the Census Bureau as “very high.” They will also ignore the fact that their evidence of voter suppression – state laws like the one passed recently in Georgia – are really no different than policies that already exist in blue states.

Second, Democrats will flail about Republicans “filibustering” their election takeover legislation, when in fact Democrats are only exposing their own laziness. The Senate rules already allow Democrats to force Republicans into a talking filibuster. The discussion around the filibuster has become so convoluted that people assume that cloture – the 60 votes required to bring debate to a close – must be invoked on every debatable question. But that’s simply not the case. Before the Senate created the cloture rule in 1917 (by changing its own rules, which required then, as now, 67 votes – not by nuking them), the Senate routinely passed legislation the old fashioned way: by majorities building consensus and, where necessary, using existing Senate rules to exhaust determined minorities into submission.

Those rules still exist and are available to majorities today. The difference between then and now isn’t partisan, it isn’t gridlock, it isn’t some fundamentally different political situation. The difference between then and now is simply one of institutional laziness.

In that sense, much of the rage against the Senate’s filibuster is misplaced. The Senate’s “gridlock” is as much a creation of the majority leader’s office, regardless of party, as it is of partisanship. The Senate only works 2.5 days a week, hardly votes, it hardly engages controversial legislative questions, and the role of senators – all equally powerful in their own right – is diminished into rubber stamping nominations for a living. No wonder so many of them are retiring, or don’t want to run for the job in the first place.

An active Senate, one which engages in its traditional function of deliberation, debate, voting, and actually engaging in the hard work of consensus building, of trying, failing, and trying again, would be surprised by what it could achieve. As former Republican majority leader Trent Lott famously observed, “there are only two rules in the U.S. Senate – exhaustion and unanimous consent. And the second rule only applies when the first has been reached.”

The modern Senate is almost completely devoid of any process resembling working toward legislative goals, creatively using the chamber’s rules to push forward priority legislation, or engaging in the deliberation that is supposed to be the hallmark of “the world’s greatest deliberative body.” There are only temper tantrums and threats to nuke the Senate’s rules – as much an argument of laziness as one of dyspeptic leaders who somehow think legislating should be easy.

Tearing at the institutional foundations of a deliberative chamber will not speed up the process of lawmaking. It will only swing the country further into polarization, poor governance, and little certainty, with sweeping changes made and then unmade, like water sloshing back and forth in a bathtub never finding its center.

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