Sen. Cory Booker (D-NJ) is a brilliant and honorable public servant, but his defense of the filibuster is based on a mathematical error that, though small in scope, has significant implications for democracy.
At last week’s “We the People” forum in Washington, Booker defended the filibuster because without it, he said, the Republicans would have defunded the Affordable Care Act.
But it wasn’t the filibuster that saved Obamacare. Republicans saw to it that their legislative attack on health care, unlike the Democratic effort to pass the law in the first place, wouldn’t be hobbled by a supermajority requirement. They leveraged a complex Senate procedure known as “budget reconciliation” to ensure that their anti-ACA bill would be subject to a simple majority threshold. The ACA survives today because Senate Majority Leader Mitch McConnell was not able to find 51 votes to kill it. It was the popularity of the legislation, not the filibuster, that saved the Affordable Care Act. And that’s why Sen. Elizabeth Warren (D-MA) was right to endorse filibuster abolition, while Booker’s defense of the filibuster rule is off the mark.
Modifying Senate rules would incur risk, but the risk is often overstated. Perhaps the best evidence for this is the fact that McConnell did not eliminate the legislative filibuster while Republicans enjoyed a governing trifecta, and will not eliminate it this Congress.
Spin-addled Washington commentators might say that McConnell’s reluctance reflects his supposedly institutionalist leanings—he kept the supermajority requirement for legislation in place, after all, even when doing so hurt Republicans.
Nothing could be further from the truth. As Harry Reid’s adviser Adam Jentleson explained in the New York Times McConnell’s reputation as an institutionalist is a product of mythmaking and a gullible press corps.
McConnell supports the filibuster for statutes for one reason: because he knows that on balance it is a rule that helps the right and hurts the left. To appreciate his logic, we should distinguish the politics of passing new laws from the politics of repealing currently-existing ones.
With respect to passing new legislation, Republicans, unlike Democrats, can more easily avail themselves of majority rule, because their overriding goal is to cut taxes for rich people and spending programs for poor people and they can run those bills through the same budget reconciliation process they used when they tried to repeal Obamacare. Because the Republican agenda of tax cuts can pass through reconciliation, while Democratic policies like Medicare for All can’t, the filibuster disproportionately benefits Republicans.
With respect to repealing currently-existing laws, the filibuster’s 60-vote threshold allows Republicans to prevent Democrats from repealing laws that liberals oppose when Democrats control the chamber. By contrast, the primary obstacle preventing Republicans from overturning laws that they dislike, such as the Social Security Act, is not the filibuster, but rather the popularity of the programs themselves. Getting rid of the statutory filibuster would therefore make it easier for Democrats to repeal laws that they oppose, but would not necessarily enable Republicans to eliminate the programs they dislike.
In 1968, Lloyd Free (a pollster) and Hadley Cantril (a psychologist) identified a contradiction in American public opinion. Free and Cantril showed that on one hand, most Americans are “ideological conservatives,” meaning that they do not support establishing new government programs. At the same time, however, most Americans are “operational liberals,” meaning that they support existing government programs that are already up and running. The contradiction has the practical effect in politics of making new programs extremely difficult to enact, even though they tend to become popular once implemented. It was public sentiment, not the filibuster, that scuttled former President George W. Bush’s attempt to privatize Social Security.
The filibuster thus burdens the progressive agenda in a way that it does not burden the conservative agenda. It hurts us whether we’re trying to build or repeal, but is a much lighter drag on Republicans, who can always pass tax cuts but have a hard time building bare majorities to roll back the welfare state.
Unfortunately, this reality hasn’t dawned on most Democratic voters, which is why so many of their presidential candidates, including Booker remain reluctant to change the rules.
Polling commissioned by Pack the Courts and Data for Progress suggests that Democrats like Warren have work to do, and Booker et al should be helping her. We framed the question like this: “By eliminating the filibuster rule, the Senate could pass legislation with a fifty-one vote majority rather than the sixty votes currently required to bring legislation to a vote.” Across all registered voters, 34 percent supported abolition, 34 percent opposed, and 32 percent were either unsure or said they neither supported nor opposed the idea. Democrats supported ending the filibuster 37 percent to 31 percent, while Independents supported it 35 to 33 percent and Republicans opposed it 32 to 38. That’s not the sort of breakdown we should be seeing for something so critical to the fate of the Democratic agenda. Perhaps surprisingly, city-dwellers support ending the filibuster 37 percent to 33 percent, while rural voters support it 35 percent to 32 percent, despite the disproportionate power the filibuster gives to sparsely populated states.
It’s true that the conservative judiciary poses a significant threat to progressive laws, but the answer to that problem isn’t to leave the filibuster in place. If the Democrats had eliminated the filibuster in 2009, President Obama would have accomplished much more in his first two years. The Republican Congress might have succeeded in dismantling some of those extra accomplishments in 2017 and 2018, but it would not have been able to kill everything, and on balance the U.S. would be in far better shape today. And, critically, because the U.S. would have been in better shape, Democrats would have been better positioned to win the historically close 2016 election in the first place.
If Democrats sweep back into power in 2021, they should eliminate the filibuster as well as every other procedure—like blue slips and holds—that allows small groups of senators and even single senators to grind the chamber to a halt. This would make transformative change possible for the first time in a generation. It would put key priorities like Medicare-for-all, the Green New Deal, voting rights, campaign finance reform, and proportional representation within the realm of possibility.
A Democrat may win the next presidential election by mobilizing millions of new voters, but if the Senate does not get rid of the filibuster, his or her presidency will be hobbled from the start.
Aaron Belkin is Director of Pack the Courts and the Palm Center, and a professor of political science at San Francisco State University.
Sean McElwee is Director of Research and Polling of Pack the Courts and Founding Director of Data for Progress.