There is no doubt that any Democrat will be better than Donald Trump in 2020, even if the nominee ends up being Tulsi Gabbard or Mike Bloomberg, assuming he runs. Yes, even the horrid Howard Schultz would an improvement on Trump. In addition, there seems to broad agreement among almost all of the current and potential Democratic candidates of the necessity of finding a path to universal health insurance for all Americans and the need for higher taxes on the wealthy. There is also a general consensus around taking at least some steps to mitigate the damage from climate change, the existential threat facing much of the world’s wildlife including humans.
In fact, what may truly differentiate progressives and centrists, as well as the Democratic presidential candidates, is their approach to actually getting their proposals into law. Some are willing to work within the existing political and legislative framework while others are focused on fundamentally changing how that system works.
Perhaps to their detriment, the Democratic candidates will be forced to flesh out the specifics of their approaches to each of these issues and how they propose to pay for them as the campaign moves along. The pundits and the press will, of course, demand that. Democratic voters will want the former but are probably less concerned about the latter. And everyone, Republicans included, will be offering constructive and, unfortunately, destructive criticism. This stands in pretty stark contrast to the Republicans who pretty successfully ran on “repeal and replace” for eight years without really ever coming up with any plan for “replace”.
Of course, the fact that Republicans offered nothing, in fact less than nothing by eliminating the protection for pre-existing conditions, to replace the ACA is a large part of the reason that effort failed and, for Democrats, it should highlight the importance of having at least a range of well-vetted plans for moving forward legislatively in 2020. No doubt, many of these will not go far enough for some progressives and will go too far for some centrists. But they will be far better than anything Trump and the GOP has to offer which will be more lies, more tax cuts, and cries of “SOCIALISM!!!”.
While having a workable legislative agenda is helpful, it is far more important to be able to pass as much of that agenda as possible. In fact, even if Trump is defeated, Democrats will still have a hard time picking up the three seats they need to gain a majority in the Senate in 2020. Their obvious targets will be in Colorado, North Carolina, and Arizona, with additional opportunities is Maine, Iowa, Georgia, and, believe it or not, Texas. Democrats will have to defend Doug Jones’ seat in Alabama, as well as protect ones in Minnesota, New Hampshire, and Virginia.
The issue for the Democrats is that, even assuming they defeat Trump and gain a slim majority in the senate in 2020, it will be difficult to move on their agenda outside of bundling as much as they can into budget reconciliation that only requires 50 plus one votes to pass. Anything ruled outside the budgetary process will be blocked by Republicans using the filibuster. While budget reconciliation would allow Democrats to act on universal health care and raise taxes in the wealthy, the filibuster would preclude action on voting rights, civil rights, workers’ rights, immigration and criminal justice reform, and regulation to attack climate change.
The filibuster is not part of the Constitution or even part of the original design of the Senate to protect minority rights and encourage debate and deliberation. It was an accident of history. The Senate’s original rules allowed for a simple majority to cut off debate and demand a vote. But when Aaron Burr rewrote the Senate rules in 1806, he left this provision out, apparently by mistake and certainly without any consideration of its impact. And, in fact, it was over 30 years before the first actual filibuster was employed in 1837. The supermajority of 60 votes to bring cloture, ending the filibuster, was enacted in 1917 as a compromise to find some way to end the filibuster which could be used to block legislation by a single Senator.
While the filibuster was originally designed to force an endless debate, the adoption of the “silent” filibuster where just one Senator can privately signal his intention to filibuster and the ability to also filibuster the motion to proceed thereby blocking legislation from even coming to the floor has the exact opposite effect, effectively eliminating debate entirely.
The effectiveness of the filibuster in blocking legislation has created a separate discussion on the left about the possibility and advisability of eliminating it altogether. Ian Millheiser, Brian Beutler, and others have made the case advocating for Democrats to eliminate the filibuster should they get control of the White House and the Senate in 2020. As Beutler writes, “under a Democratic president who won both of his elections with substantial popular majorities, Republicans turned the filibuster into a tool of nullification, used routine legislative deadlines and threats of harm to the population as means of extortion, and stole a Supreme Court seat”.
In addition, the failure of the Republican attempt to repeal Obamacare has emboldened those who believe that, if Democrats can provide programs that are popular with the people, it becomes politically poisonous for Republicans to actually roll those programs back. To summarize Atrios for well over a decade now, voters want nice things and wonder why they can’t have them. Bill Clinton actually confirmed this viewpoint in the 1990s when described Bill Kristol’s influential memo urging Republicans to block his health care plan as stating “If you let Bill Clinton pass any kind of health care bill, the Democrats will be the majority party for a generation”. At its core, this argument against the filibuster expresses the firm belief that, at present, Democratic ideas and goals are far superior to Republicans’ and that the American people will support and defend those Democratic ideas when implemented. It is, without doubt, a bold and confident expression of Democratic values.
There are other, perhaps less partisan reasons for wanting to eliminate the filibuster. The Senate is already a horribly undemocratic institution, the legacy of America’s original sin of slavery and its small state bias. California, with 70 times more people, has the same representation as Wyoming in the US Senate. At present, around 6% of the population controls 21 states with the 42 votes necessary to theoretically provide the margin for a successful filibuster.
In order to avoid the filibuster, budget reconciliation bills get larded up with all sorts of Rube Goldberg efforts to address issues that might be better acted on through more direct legislation. In addition, it would force Senators to not only debate certain issues but also force them into actually accountable votes. So much legislation nowadays never even gets debated because of the use of the “silent” filibuster or the actual filibuster of the motion to proceed blocks legislation from even being brought to the floor for consideration. Removing that obstacle would force Senators to actually engage on certain issues and not be able to hide behind a failed vote for cloture.
Of course, all those reasons are why Senators want to keep the filibuster. It protects them. In addition, obviously what’s good for the goose is good for the gander and eliminating the filibuster will make it easier for Republicans to pass their own agenda when they control Congress. As Benjamin Wittes asks, “The question is why you are not more afraid of Republican use of the precedent you are urging…Republicans are more often than not in control of the Senate. And as you know, the GOP has a huge structural advantage in Senate control. Why would you want to make it easier for small minorities in the Senate to do more? Won’t you lose more than you win?” The answer from Democrats is not only the firm belief in the popularity of their own policies but that Republicans are totally fixated on lower taxes which can’t be blocked by a filibuster anyway.
Another potential downside of eliminating the filibuster is that it will create the potential for a constant see-saw of implementation and repeal as Congress changes hands, creating chaos for business and individuals. But this may encourage lawmakers to ensure they write well-crafted legislation that can be quickly implemented as any delays or problems will increase the chances for repeal.
Some Democrats want to go even further to address the structural problems in the US Senate and the Electoral College. One proposal would be to admit Washington, DC and Puerto Rico as new states, creating another four Senate votes. While that is advisable merely for the purposes of actual representation, it will hardly deal effectively deal with the filibuster.
African Americans waited nearly 200 years for real access to the franchise, which is still under attack today. For a great portion of that time, it was the filibuster that prevented from exercising that right. Americans have been waiting nearly 80 years for some form of universal health care, again, largely because of the filibuster. The ACA did not include a public option because of the filibuster.
Experts say that we have just over a decade to deal with climate change before it becomes catastrophic. In the face of that evidence, the Republican party, with an almost guaranteed filibuster-proof structural advantage in the Senate, takes the position that climate change is a hoax. The country, the world, can not wait decades for that rare event where Democrats have 60 votes in the Senate and control the White House in order to deal with this existential threat.
Democrats like Warren, Sanders, and to some extent Brown want to also try to fundamentally change the nature of American capitalism in a more comprehensive attempt to address the core issues around climate change, income inequality, and wage stagnation. For example, Warren’s Accountable Capitalism Act will fundamentally challenge the primacy of the shareholder in the decisions of America’s largest corporations. It would put employees, communities, and customers on equal footing with shareholders in driving corporate decisions. It would require significant employee representation on corporate boards and ensure that any political activity would require agreement of 75% of the board and shareholders. Multiple Democrats want to also significantly strengthen anti-trust enforcement.
All of these proposals as well as other regulations that advance Democratic values will inevitably be subject to judicial review in cases that will inevitably come before a Supreme Court that is increasingly viewed as highly partisan and political. That has led some Democrats to advocate packing the Supreme Court with perhaps four new appointees to offset Merrick Garland’s stolen seat, the fact that four of the existing justices have been appointed by Republican presidents who did not originally win the popular vote, one of whom may be an agent of Russia and won his election with the help of that country and significant campaign finance violations.
Of all the current candidates, only Warren and Buttigieg are supportive of eliminating the filibuster and they both also want to leave the option open to pack the Court. Now, there is nothing to stop any of the other candidates from changing their position if Democrats win the Presidency and the Senate. And leaving the option of Court-packing open may actually intimidate Justice Roberts just a little bit and force some moderation.
The divisive 2016 Democratic primary battle was a battle of ideas. The Sanders’ camp may have lost the battle but they won the war in that the current crop of Democratic candidates are largely unified around progressive policies. The 2020 primary battle may revolve around which candidates are willing to consider and institute the fundamental changes to our legislative, judicial, and economic systems to actually get those policies implemented.
Originally published at thesoundings.com on February 25, 2019.