President Joe Biden has now embraced the idea of destroying the filibuster in the Senate. This would mean that a simple majority could pass any type of legislation through the chamber. In this specific case, he is saying this in order to placate an angry left-wing base over the Supreme Court‘s recent Dobbs v. Jackson Women’s Health Organization decision, which restored democracy to the issue of abortion.
Yes, it is norm-destroying, but we live in an age of norm destruction. Democrats could do it. They could use the same nuclear option procedure that they used to abolish judicial and executive nomination filibusters under the late Harry Reid’s leadership in November 2013. It would perhaps harm the apparent legitimacy of the Senate, but I’m guessing they’d get away with it just as they did before. After all, the side that’s arguing procedure is the side that’s losing.
But they would also live to regret it, just as they have already come to regret what they did with judges.
Reid opened Pandora’s box when he abolished the judicial filibuster. More than any other human being, he is essentially responsible for the composition of the Supreme Court that just struck down Roe v. Wade. His actions failed to give Democrats a long-run advantage in judicial selection — GOP Leader Mitch McConnell saw to that after seizing the Senate in 2014 — and even worse, it led to the relatively painless accession of Neil Gorsuch, Amy Coney Barrett, and even Brett Kavanaugh. (Yes, it could have been worse.) It is true that McConnell was the one to apply Reid’s changes to Supreme Court justices in 2017, but remember two things: First, they were Reid’s changes, and second, Democrats had already explicitly promised to do this themselves after they won the 2016 election (oops).
So what could go wrong for Democrats if they override the filibuster this year in order to codify Roe?
First of all, the next conservative majority in Congress could simply undo it. Democrats are almost certain to lose the House in 2022 and perhaps the Senate as well. If they don’t lose the Senate, they may lose it along with the presidency in 2024 — Biden is a politically dead man walking, and they don’t have much of a bench to speak of. Either way, it is not at all unreasonable to imagine President Ron DeSantis presiding over Republican majorities 2 1/2 years from now. So, poof goes Roe, again — and this time, it could be six to 10 years before Democrats restore the trifecta they’ll need to undo it.
And oh, we’re only just getting started. You see, Democrats are the party of government. This means that nearly all of their policy victories, going back decades, become much more vulnerable if the legislature moves to a strict majoritarian system. Let’s just think of some examples by going back over all the Republicans’ legislative failures so far this century.
If they could act with a simple majority, Republicans could reform the Endangered Species Act so that it doesn’t become a pretext for holding back construction. They could make whatever changes to the Clean Air Act and Clean Water Act they wanted. Previous efforts to reform these laws in the Bush era ran up against the Senate filibuster. But with a simple majority, it would be a lot easier to undo much of the damage that the environmental movement has done to this country since the late Cold War era. We could even reform the law that has helped environmental groups make bank (i.e., covered their legal costs) when they have choreographed lawsuits and easy settlements with Democratic administrations.
Republicans could also pass a national right to work law in tandem with a full repeal of Davis-Bacon and the National Labor Relations Act. In less than a week, this would completely defang and defund labor unions across the nation in such a way that they might never recover. In fact, the entire bureaucracy that sustains union power today, because it takes quite an effort to sustain otherwise moribund institutions, could be taken apart in such a way that it could be reassembled only with great difficulty.
You may recall that there has been a conservative push to break up the 9th U.S. Circuit Court of Appeals for many years now. The arguments in favor are actually quite compelling considering the vast population and square mileage of the current circuit compared to all the others. With a simple majority, this could be done overnight. Whether or not this allows DeSantis to appoint additional circuit court judges, it could not easily be undone later without creating chaos in the entire legal system.
It would also be wonderful if someone would abolish the renewable fuel standard and the renewable portfolio standard, which passed as part of the energy bill at the turn of the century. If you get rid of the filibuster, it could be done in an afternoon. And considering the high price of energy at the moment, that would be a pretty popular reform.
Did I mention the creation of private accounts in Social Security? That would have happened in 2005 if not for the filibuster. And if you abolish the filibuster now, it will happen, especially given the sharp rightward shift in older demographics since that time.
Do you think Mitch McConnell hasn’t already thought about this? This is just the beginning of the wish list.
Again, Democrats are the party of government. They cannot get the results they want by just leaving things alone. Nearly everything they have ever accomplished exists today in the form of some rule that has to be enforced or some bureaucracy that needs funding — all of which becomes instantly more vulnerable without some kind of supermajority requirement maintaining the status quo.
The Senate filibuster has been the one thing protecting most of the gains liberals and progressives have made since World War II.
Finally, here’s one more reason I doubt Democrats do this now. Most of the changes conservatives could come back and enact would be much more popular than the abolition of abortion in a handful of states — the most likely outcome of Roe’s demise, at least for now. This means that Democrats at least get a political issue to seethe over and take into the election in hopes of avoiding complete destruction. But if they try to ram Roe through by abolishing the filibuster, they would at best gain a temporary victory. The price of that victory would be the destruction of everything their movement has ever accomplished since around the time my father was born.
If you’re a liberal, you probably ought to think twice about this. And if you’re a conservative, you might consider quietly rooting for them to try it.
