Maybe It's Good that We Kept the Filibuster
The Senate is massively biased toward Republicans – isn't limiting its power a good thing?
This article is an attempt to bring back the art of the “Slate Pitch:” a blog post that makes a contrarian, possibly incorrect, but interesting argument. In this case, I’m pretty uncertain about whether I think the argument I lay out below is actually right, but I wanted to write it out to clarify my own thoughts, and to see what others think.
For much of the Biden administration, a major topic of discussion on the left has been how to get rid of the filibuster. At this point, I think it’s clear that all of the pressure on Joe Manchin and Kyrsten Sinema has failed, and that the filibuster is here to stay.
I am someone who wanted Democrats to pass an ambitious policy agenda, including improvements to labor law via the PRO Act, equal protection for LGBTQ+ Americans, HR 1, and much more. So the obstinance of Manchin and Sinema on filibuster reform was for a long time extremely frustrating and upsetting to me.
But recently, I’ve changed my mind. I think the current political outlook is so bleak for the Democratic party in the Senate that it was probably a good thing that we kept the filibuster. If we had gotten rid of the filibuster on the first day of the Biden Administration, banned gerrymandering nationwide, and added six states to the union, that would have been worth it. But since in retrospect, those measures were probably never on the table. The most plausible time the filibuster would’ve been abolished was during the fight over the John Lewis Voting Rights Advancement Act. But since that bill, while important, wouldn’t have fixed the major structural problems in our democracy, I think it’s for the best that the filibuster remained untouched.
2022 and Beyond
I wrote a piece earlier this week (published in Matthew Yglesias’ newsletter, Slow Boring), explaining the grim Senate math going forward for Democrats. The basic problem is that if Democrats turn in “normal” electoral performances in the next two election cycles, the increasing bias of American political institutions will result in electoral disaster.
My thoughts on the filibuster are based on the conclusions I reached in that piece – namely, that Republicans will probably have around 58 Senate seats in 2025. The last time the Republican party had 58 Senate seats was in 1923 – literally a century ago. And that was a very different Republican party.
What I’m worried about
One point I often see in favor of eliminating the filibuster is that since Republicans don’t have an affirmative policy agenda, letting them govern unfettered is fine. Their only priorities, this line of reasoning goes, are tax cuts and judges, which can both be done with a simple majority already. So ending the filibuster wouldn’t help Republicans much at all.
This is partly true. But I think it ignores two important things. First, we can’t know for sure how far the right will push the envelope, if given more unilateral power than they’ve had in decades – especially without hope that the Supreme Court will check their excesses. Especially on abortion, there is a real threat of a dramatic policy push for national anti-choice legislation, forced by the party’s evangelical base.1 Additionally, without the filibuster, a unified Republican government could pass a budget without any Democratic votes. This could be very bad.
Second, there are massive tail risks of an unrestricted Republican majority embarking on a legislative push to undermine democracy. I’m not exactly sure what that would look like, but Hungary a decade ago presents a frightening potential outcome.
In Hungary, a right-wing government, led by strongman Viktor Orban, won a large enough majority in the 2010 elections to push through major legislative changes, including restrictions on free speech, limits on the power of the independent judiciary, and brutal gerrymanders. These changes have massively increased the power of Orban, and turned Hungary into what political scientists call a “competitive authoritarian regime.” While Hungary does continue to hold democratic elections, the structural obstacles to the opposition are so great it is difficult to imagine Orban’s Fidesz party losing power. Without the filibuster, you could imagine something similar happening in the United States.
Three reasons my argument might not hold up
First, maybe those who argue Republicans have no affirmative policy agenda are more correct than I think. Maybe a 58-seat Republican majority, unconstrained by the filibuster, would do basically nothing differently from one where 60 votes are still needed for cloture. Perhaps the cost (slightly worse policy making from 2025 to 2027) is worth the benefit (much better policy making next time Democrats have the Senate).
Second, maybe it would be good for Republicans to pass sweeping, radical legislation on their secret priorities, because this legislation would be so unpopular that it would get a huge share of them voted out of office. If you believe having Democrats in power creates much more good than having Republicans in power does ill, this might appeal to you on utilitarian grounds.2
Third, maybe when it comes to anti-democracy legislation, there’s no Hungary-style bill that could get 51 Republican senators to vote for it, but couldn’t get 51 Republican senators to abolish the filibuster in order to then vote for it.
All of these objections are plausible, but I think they are ultimately unconvincing, for one major reason: I think it is highly likely that the next Democratic Senate majority (in whatever decade that occurs) abolishes the filibuster. If you think the odds of this are high, then even a small restraining of hypothetical Republican policy making from 2025 to 2027 (or whenever Republicans next have unified control of government), would be worth it – because it ultimately wouldn’t constrain future Democrats.
Principled reasons for filibuster reform don’t make sense
One common argument for filibuster reform is that the filibuster is anti democratic, and therefore intrinsically bad. I got the idea for this piece while listening to an old Ezra Klein interview, on the 80,000 Hours podcast. In the interview, Klein says:
I would prefer to have feedback loops of policy accountability, even at the cost of there potentially being some minor advantage for Republicans in this.
As a utilitarian, this seems… very wrong to me. What’s so inherently good about “feedback loops of policy accountability?” Hungry people can’t eat them. Homeless people can’t sleep under them. They’re an abstraction, created by political theorists. I like Ezra Klein, but I don’t think his argument here makes very much sense.
Taking a step back
As I said above, I think filibuster reform that led to democracy reform, in the form of adding states to the union (and thus reducing the partisan bias of the Senate), would have been worth it. But without that, basically all that filibuster reform would mostlty have just increased the power of the majority in a body where Democrats are unlikely to have the majority again for a very long time.
I think we should probably have a fairly strong prior that this would have been bad. If all you knew was that Republicans were bad (and they are), and they were going to control a legislative body ~90% of the time in the next 20 years, wouldn’t you want to limit that body’s power as much as possible? I would.
The reception to my Slow Boring piece earlier this week made me think that Democrats may be waking up to the looming Senate apocalypse. One conclusion from the Senate math, as I wrote there, is that our party should probably start making some tactical changes. But another conclusion is that we should be glad the filibuster has stayed intact.
National right-to-work legislation also strikes me as a scary possibility.
Given the tail risks involved with giving power to a party led by people as erratic as the present day Republican party leadership, this assumption seems highly dubious to me.
I mean it's true that if you first postulate that Democrats won't do anything with power, then having a government with power is a bad thing because only Republicans will do anything with power.
The problem there is with the postulate, not the theorem.
How likely do you think it is that a 58-seat Republican majority will maintain the filibuster if doing so stymies their agenda? If the GOP continues with their currently patterns with regards to respecting democratic norms, it doesn't seem like keeping the filibuster in place today provides any protection in the future.