You’ll be sorry. The warning was delivered in the measured, diplomatic cadences of the Senate rather than the taunting ones of the schoolyard. But there was no mistaking Mitch McConnell’s message.
Senate Democrats, led by then-Majority Leader Harry Reid, had just deployed the “nuclear option” to eliminate the filibuster for all executive and judicial nominations save the Supreme Court in order to confirm President Barack Obama’s judicial nominees. In late 2013, McConnell rose to address the chamber and cautioned his counterparts across the aisle that their action was foolhardy and shortsighted. “You’ll regret this, and you might regret it even sooner than you might think,” he predicted.
The Kentuckian’s words soon proved true. Democrats could do nothing to stop President Trump’s Cabinet nominees in 2017. One of his most controversial picks, Betsy DeVos for secretary of education, was confirmed only after Vice President Mike Pence stepped in to break the 50-50 tie in the Senate. That same year, Republicans expanded the precedent set by Reid, unanimously killing the filibuster for Supreme Court nominees after Democrats tried to block Neil Gorsuch, Trump’s pick to succeed Antonin Scalia. A year later, Brett Kavanaugh was confirmed with a bare majority. Had the filibuster been intact, his nomination would have died, if not before Christine Blasey Ford’s accusations, then certainly after.
Two Supreme Court justices, with a third on the way. Such has been the price for neutralizing GOP “obstruction.” Yet far from having any regrets, Reid to this day maintains he “had no choice — zero” and avers he’d do it all over again. Indeed, he advocates that Democrats go the rest of the way and jettison the legislative filibuster, the hoary, much-loathed rule that prevents most legislation from passing the Senate without 60 votes. As for the risk that following him might just lead Democrats to blow themselves up again, he seems quite unperturbed. Not, at least, as long as they can blow the Republicans up first.
Nor is Reid’s an isolated voice. More and more Democrats are heeding the call of left-wing activists who for years have clamored for the filibuster’s demise. Several candidates for this year’s Democratic presidential nomination endorsed its elimination. The eventual nominee, former Vice President Joe Biden, once steadfastly opposed, has become more receptive to the possibility.
The cause gained its most prominent adherent in July. While eulogizing Rep. John Lewis, Obama excoriated the filibuster as a “Jim Crow relic” that cannot be allowed to stand in the way of passing new voting rights legislation such as that championed by the late civil rights icon. The Senate’s Democratic leadership is ready to pull the trigger. Minority Leader Chuck Schumer and his deputy Dick Durbin have both expressed support for undoing the filibuster should Biden win the presidency and Democrats take the Senate. According to NBC News’s Sahil Kapur, party insiders have set up a war room to coordinate a rapid disposal soon after Biden assumes office.
Ditching the filibuster isn’t merely a demand of the far Left. The country’s most prominent Democrat wants it. So does much of the party base. The momentum, already building, received another boost from the death of Ruth Bader Ginsburg. Senators and progressive commentators alike embraced doing away with the filibuster in order to add seats to the Supreme Court should Republicans fill her seat before the election.
No, the Left and its allies in the media agree: The filibuster can no longer, must no longer, exist. Not when it stands in the way of a public option or Medicare for All, the Green New Deal, pro-union legislation, codifying Roe v. Wade, increasing the minimum wage, statehood for Washington, D.C., and Puerto Rico, court-packing, and other cherished goals, old and new.
Democrats have a sweeping legislative program to implement. If killing the filibuster is what it takes, so be it. The most enthusiastic proponents of the idea are confident, almost to the point of arrogance, that they’d suffer no adverse consequences. The prospect that they are handing Republicans a weapon to use against them is dismissed on the grounds that the GOP has at most “a very narrow legislative agenda,” as liberal Washington Post columnist Paul Waldman put it.
Even if Republicans recaptured a post-filibuster Senate, the thinking goes, what could they do? Plenty, in fact. And progressives are sure to hate all of it.
Start with the obvious: abortion. A Republican Party holding the presidency and both houses of Congress, the so-called “trifecta,” in a post-filibuster world could pass an array of laws curtailing or even overturning the right to an abortion. It might ban sex-selective abortions. Perhaps it would pass a national parental notification law. More maximalist measures such as a ban on abortions after 12 weeks or a fetal heartbeat bill are also possible. Defunding Planned Parenthood, a longtime conservative aspiration, would be in the cards as well.
Republican opposition to these moves would be minimal, even nonexistent. A Senate without the filibuster is a Senate without Susan Collins of Maine and maybe even Alaska’s Lisa Murkowski. A Senate GOP caucus missing those two pro-choice GOP centrists is a much more uniformly conservative one.
The Second Amendment would benefit, too. A bill to approve national reciprocity for concealed carry permits fell three votes short of overcoming the filibuster a few years ago. Take away the filibuster, and it would pass easily. In a similar vein, a GOP trifecta unencumbered by the filibuster could preempt state bans on “assault weapons” and “high-capacity” magazines. It could also lower the age for gun possession and prohibit financial institutions from refusing to do business with the gun industry, as some have begun to do.
Republicans are champions of school choice. Absent the 60-vote threshold, they could easily authorize school vouchers nationwide and otherwise encourage states to expand their school choice programs. Democrats want to make union organizing easier and outlaw state right-to-work laws, among other changes to the nation’s labor laws. These could only pass without the filibuster. Republicans, equally unrestrained, could respond with a national right-to-work law and by repealing the Davis-Bacon Act, which mandates that contractors pay the prevailing wage on federally funded projects. They could ban so-called official time, during which federal workers receive paid time off to perform union activities, or even ban unions for federal employees outright.
Adding states and packing the courts as retaliation for what they see as Republican perfidy, as Democrats have threatened, is a two-way street. Confer statehood on D.C. and Puerto Rico and say hello to East and West Dakota the next time Republicans have the trifecta, and 10 Texases to boot. The GOP has long wanted to break up the 9th Circuit Court of Appeals, that den of judicial iniquity. Congressional Republicans would have no compunction about doing so if Democrats packed the Supreme Court. Nor would they hesitate to add however many seats are necessary to offset Democratic additions to that body or the lower courts.
What else might Republicans accomplish were the filibuster abandoned? They could implement national voter ID. They could strengthen religious freedom protections and conscience rights in the face of increasing assaults by the ACLU and other organizations, which, for example, have sued Catholic hospitals to force them to perform procedures that violate Catholic teaching. The Hobby Lobby and Little Sisters of the Poor cases arising from the Obamacare birth control mandate would be a thing of the past, as a unified Republican Congress could grant statutory exemptions much broader than the narrow ones sanctioned by the Supreme Court. Finally, while they’re at it, Republicans might defund PBS, NPR, the National Endowment for the Humanities, and the National Endowment for the Arts and claim those scalps at long last.
These examples are meant to be illustrative, not exhaustive. One could easily come up with a dozen or more bills Republicans could pass if they needed only 51 votes (immigration, anyone?). Neither would any of these proposals necessarily become law. The point is that contrary to jibes that the GOP has no agenda that would gain from dumping the filibuster, it has one, and quite a robust one at that.
Republican strategist Luke Thompson warned that expunging the filibuster would change the nature of the Senate by, among other things, reducing it to the rudimentary majoritarianism of the House and encouraging even more gamesmanship from the minority to gum up its works. Even worse, from the perspective of swing-state senators, is that it would deny them the ability to cast a “free vote” in the knowledge a particular bill isn’t going anywhere. The terrain becomes much more treacherous when every vote is a vote on passing a bill and not merely bringing it to the floor.
The consequences of negating the filibuster would doubtless be deleterious for the Senate. For the country, they may be nothing less than dire. As Sean Trende of RealClearPolitics, the sharpest political analyst in the business, has noted, a state of affairs in which radically polarized parties take office every four years to adopt diametrically opposed agendas is one the republic would not long survive.
If such portentous admonitions aren’t enough to dissuade the Democrats, perhaps more practical considerations will. Given their structural advantages in the Senate, the GOP, Trende calculated several years ago, has much better odds of winning trifectas in the future than Democrats do. Weapons, as they are wont to do, escape the hands of their creators. It wouldn’t be the first time, as McConnell would no doubt remind his colleagues across the aisle. McConnell, given the sword, would surely be willing to use it as he’s done before.
Democrats are convinced the filibuster stands in their way. But it stands in Republicans’ way, too. They don’t push their legislative priorities because they know they won’t go anywhere due to the filibuster, but they do have them. Remove that dike, and the waters would pour forth. A deluge that, should it ever come to pass, progressives will wish had remained imaginary after all.
Varad Mehta (@varadmehta) is a writer and historian. He lives in the Philadelphia area.
