At a time when one of the political parties in our two-party system is waging war on democracy, Congressional proposals to safeguard democracy, thus far, can't secure majority support in the U.S. Senate for setting aside the filibuster to allow an up or down vote on proposed remedies, chiefly H.R.1 (S.1) and H.R.4 (the John Lewis Voting Rights Advancement Act) at this point, though there is a dire need for more than this.
In my last post, I referenced a 2017 letter from Republican Senator Susan Collins and Democratic Senator Chris Coons urging the 2017 Majority Leader Mitch McConnell and Minority Leader Chuck Schumer to preserve the filibuster for legislation. This was after McConnell and the Republican majority had nuked the 60-vote requirement to confirm Neil Gorsuch, replacing Antonin Scalia on SCOTUS, after burying President Obama's nomination of Merrick Garland. Including Collins and Coons, there were 32 Democratic signatories (counting Maine's Independent Angus King), while 30 Republicans signed on. It's worthwhile to take a closer look at this episode:
The letter, which embraces "extended debate," accompanied Senator Collins' claim that the 60-vote rule "makes bipartisan legislation more likely" and Senator Coons' declaration of Democrats' willingness "to partner with our colleagues across the aisle."
We are writing to urge you to support our efforts to preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate. Senators have expressed a variety of opinions about the appropriateness of limiting debate when we are considering judicial and executive branch nominations. Regardless of our past disagreements on that issue, we are united in our determination to preserve the ability of Members to engage in extended debate when bills are on the Senate floor.
We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body. Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.
Senator Collins' statement: "This letter demonstrates that a majority of the Senate, both Republicans and Democrats, can come together to protect an important tradition of the Senate that recognizes the rights of the minority and makes bipartisan legislation more likely. After the contentious and polarized debate of the past few weeks, I am hopeful that this letter indicates a new determination by a bipartisan group of more than 60 Senators to move forward to solve the pressing problems facing our nation."
Remarks by Senator Coons: "Democrats want the Senate to work, and we are willing to partner with our colleagues across the aisle if we can get things done for the American people. We have a long way to go to heal the wounds between our two parties, but this letter is a small first step towards that important goal."
For folks who are not members of the world's greatest deliberative body, at least the small-d democrats among us, the willingness to urge support for "an important tradition of the Senate," that is, for minority rule (until the moment Mitch McConnell, as majority leader, decides it has ceased to provide a critical partisan advantage to the GOP), may be a headscratcher. It's hardly a mystery to Senate-watchers, however: the filibuster provides political cover for vulnerable senators who wish to duck tough votes (and for the leadership that wishes to see those vulnerable senators survive reelection). As Gregory Koger (political scientist at the University of Miami) explains:
Filibusters help members of the majority party when they are pressured to support proposals that they privately believe are bad policy or risky politics. That is, there are members of the majority party who privately believe their party’s proposals are politically dangerous or terrible policy, but they are afraid to publicly defy their party leadership. In a simple-majority legislature, these conflicted members would have to make difficult choices between their private views or personal interest and the position of their party, backed by a populist president or powerful interest groups. In a supermajority legislature, on the other hand, conflicted legislators can publicly support their party’s position while privately applauding the obstruction of the minority party.
Some of the half dozen or so Democratic senators staying out of the line of fire, while Joe Manchin is bombarded for his defense of the filibuster, may be in this category. Others, like Dianne Feinstein, who still remember the good old days -- when Joe Lieberman was best buds with John McCain and Lindsey Graham, when Orin Hatch and Ted Kennedy teamed up to pass legislation, and when an agreement made in the men's gym trumped fact-finding at a hearing to consider a lifetime appointment to the Supreme Court -- may believe that, somehow, several years into the McConnell era, the Senate might return to its past glory.
The filibuster is a rule that 51 senators (or 50 plus the VP) could change at any time. And "there’s no shortage of reasonable ideas" for changing the filibuster, as Jonathan Bernstein notes this morning in a review of several proposals. There just aren't 51 votes for it.
In 2021 that may mean that no legislation emerges from Congress to counter the deluge of state laws to suppress the vote and, worse, to lay the groundwork for overturning election results when Republicans lose. That's because, with the filibuster in place, it will take 60 votes to get to a solution; that's 10 Republican votes to counter Republican legislatures' anti-democratic crusade. And that's hardly likely.