Don’t Despair the Survival of the Filibuster

Ezra Klein and others shouldn’t panic. There’s a way to make this work.

“[W]hat Democrats need to do is simple: Just help people, and do it fast,” concluded New York Times columnist Ezra Klein last Thursday. To that end, Klein argued Democrats had to junk the legislative filibuster, or face a “wipeout” in the 2022 midterms: “In a Senate without a filibuster, Democrats have some chance of passing some rough facsimile of the agenda they’ve promised,” Klein warned. “In a Senate with a filibuster, they do not.”

But this week, Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona reiterated, with unequivocal force, their opposition to eliminating the filibuster. Without both of their votes, the filibuster will remain. So after one week of the Biden presidency, should Klein and the rest of us declare the Democrats doomed?

We should not. Klein’s counsel was far too pat. The Biden presidency can still be successful, and a midterm debacle—while hardly uncommon for a president’s party—can be averted. But it requires setting reasonable expectations on Democratic performance, and applying stiff pressure on Republicans to perform as well. Unfortunately, Klein’s high-profile column echoed unrealistic expectations for Democrats, putting all the pressure on them to perform political wizardry.

Klein’s advice to the Biden administration and the Democratically controlled Congress is drawn from the Democratic trifecta’s supposed mistakes during the first years of the Barack Obama administration. “The stimulus bill was whittled down,” he laments. “A simpler, faster, more generous bill” than the Affordable Care Act “would have been better politics and better policy.”

Of course, you can win elections by helping people quickly; such advice is practically tautological. But there are unavoidable obstacles rendering the advice meaningless. Legislation requires imperfect compromises. Policy designers and bureaucratic officials make mistakes. The need for tweaks, fixes and additional reforms is perpetual. Perfection is elusive.

That’s why you have to both help people and manage expectations. You don’t get re-elected for things you promise but don’t deliver.

As Biden begins his presidency in the midst of a dual health and economic crisis, Klein accurately argues he needs to tackle the pandemic quickly. But the counsel of “just help people, and do it fast” doesn’t automatically lead one to a singular course of action.

Klein says of Team Biden’s approach, “Their $20 billion plan to use the full might of the federal government to accelerate vaccinations hits all the right notes. But it’s attached to their $1.9 trillion rescue plan, which needs 10 Republican votes it doesn’t have in order to pass over a filibuster.” Klein argues this alone justifies the abandonment of the filibuster: “Democrats will quickly face a choice: To leave their promises to the American people to the mercies of Mitch McConnell, or to change the Senate so they can change the course of the country.”

McConnell deserves all the scorn he receives from those who cannot forget the near-total obstruction he waged against the Obama administration, culminating in the refusal to give then-Supreme Court nominee (now Attorney General-nominee) Merrick Garland a single hearing let alone a floor vote. So it’s understandable that scarred Democrats are terrified at the prospect of McConnell holding an effective veto over the Biden agenda.

Fortunately, the Democratic Senate victories in Georgia deny McConnell control of the floor and deplete his power. Democrats may need 10 Senate Republicans for most votes, but none of them need to be named Mitch.

Moreover, Democrats should recognize that while McConnell may be a soulless partisan, he is also a calculating one. In December, when he concluded that holding up a bipartisan pandemic relief proposal could hurt his Georgian incumbents, he tweaked the bill, got his caucus on board and sent it to the president’s desk.

McConnell is not immune to miscalculation; he may regret denying David Perdue and Kelly Loeffler the chance to vote on $2000 relief payments. But if he calculates that the political cost of obstruction is too high, he won’t pay it.

So, we should not assume that the only choices for the Democrats on pandemic relief are either submit to McConnell’s will or junk the filibuster — something which Manchin and Sinema have rendered impossible.

There’s another choice. For instance, don’t let the vaccination plan’s fate get overly intertwined with the rest of the $1.9 trillion proposal. Since a crisis does require urgency, excessive demands should not get in the way of urgent action.

Already Biden aides have been meeting with a bipartisan group of Senators, which does not include McConnell, and even some of the members of the Democratic caucus have blanched at the initial price tag. (“This isn’t Monopoly money,” Senator Angus King scoffed.) That’s a clear warning that removal of the filibuster or use of the existing budget reconciliation senatorial procedure (which can pass items with direct budgetary impacts, without threat of filibuster), is no guarantee wish-list items can pass on narrow party-line votes. Unlike Obama in 2009, Biden is not sitting on 60 Senate votes. FDR’s Democrats and Abraham Lincoln’s Republicans also had huge congressional majorities at the beginning of their presidencies. In fact, no president has ever inherited an emergency this grave with so few members of his party seated in Congress.

Further, Republicans are signaling openness to a deal that prioritizes vaccination funding. Sen. Mike Rounds of South Dakota, a state that has been hit particularly hard by COVID-19, said last Sunday on Meet the Press: “I really don’t think we’re that far off with regard to the direction for COVID relief. Specifically in targeted areas. I think we all want to make sure that we properly funded the availability of vaccines … The real challenge is whether or not Democrats are prepared to perhaps release some of the items that are not specifically targeted to COVID relief.” (Rounds cited Biden’s inclusion of a $15 federal minimum wage as not germane.)

Of course, one open-minded comment on a TV show does not ensure good faith, bipartisan negotiations. But one month ago, we did see bipartisan negotiations on pandemic relief, so we have a recent example of success. With the filibuster off the table, Biden must try for 60, and pundits should not assume failure is preordained.

The prospect of a smaller, bipartisan pandemic relief package will likely prompt progressives like Klein to lament we are repeating the “mistake” of Obama’s Recovery Act. That package, which at one point cleared $930 billion during the Senate’s amendment-making process, was reduced in size to win three Republican votes as well as the votes of Democratic moderates. As Michael Grunwald wrote in “The New New Deal,” “many Democrats in the room felt just as strongly about an $800 billion cap. Obama needed the votes of Ben Nelson, Evan Bayh, Claire McCaskill … Mary Landrieu … Mark Begich … and other centrists in his party as badly as he needed [Republican Sen. Arlen] Specter’s.”

It’s true that the resulting recovery was too slow to help Democrats in the 2010 midterms. I would further argue the Recovery Act wasn’t quite enough to help Obama win re-election in 2012; he also needed the bipartisan 2010 extension of the Bush tax cuts to stretch the recovery.

But in 2009 we suffered a financial crisis, not a health crisis. Financial crises always have notoriously slow recoveries, whereas we don’t know how fast our economy will heal following the end of this health crisis. In turn, we can’t know exactly how much relief is needed to avoid an extended period of economic sluggishness.

What we do know from the experience of the Recovery Act that something is better than nothing. Obama would have been immeasurably worse off had he failed to pass the initial stimulus and the subsequent tax cut extension, and worse off still had he tried to pass a larger aid package through partisan budget reconciliation and failed anyway because of moderate resistance.

It won’t be politically helpful to Democrats to harangue them for failing to achieve what’s not possible. Instead, progressives should pressure Republicans to put country first and cooperate with the President or pay a political price for nihilistic partisanship.

Bipartisanship will create imperfect bills, but so will the compromises involved with any partisan 51-50 vote reconciliation squeakers since Democrats are an ideologically diverse party that stretches from Alexandria Ocasio-Cortez to Joe Manchin. Moreover, the political value of a bipartisan bill is that the inevitable mixture of credit and blame can be shared, and any pressure for future action will also fall on both parties.

Clean wins of ideologically pristine, purely partisan, instantaneously popular programs are quite rare in this business. Case in point: the Affordable Care Act. This is one of the very few items Obama enacted on a strict party-line vote. (A subsequent partisan reconciliation bill that touched up ACA also included a student loan reform bill.) Klein uses it as a cautionary tale, warning against enacting programs which are overly complex and insufficiently robust. But as a lasting legacy of the Obama administration, one that withstood the Republicans’ 2013 shutdown and 2017 repeal attempts, it can model for success. It survived the Trump years.

Yes, the ACA was enacted with a slow implementation timeline. Yes, it had a botched rollout in the early days of online sign-ups. Yes, “if you like your doctor you can keep your doctor” was an oversell. Nevertheless, the law’s benefits became more appreciated over time. By 2018, congressional Democratic candidates could comfortably campaign on enhancing the ACA, even in reddish House districts. By 2020, Democrats who ran on replacing the ACA with a single-payer system fared poorly, while those who ran on augmenting it — including the new president—performed better.

And why should we assume that a faster implementation—especially a fast implementation of a grander scheme like single-payer or public option—would have gone off without a hitch and helped more people? New government programs typically have complications. For example, when Social Security began, government bureaucrats had to create an unprecedented punch card system, which was hampered by mice eating the punch cards. Then a media-driven panic ensued over millions of unidentified “John Doe” employment records which threatened to deny people benefits. These early problems got solved, but it took time.

The Affordable Care Act has been a political punching bag for Republicans in large part because they had nothing to do with its passage. Compare the Republican approach to the ACA to Obama’s Fair Sentencing Act, which quietly sailed through Congress in 2010, unanimously in the Senate, on a voice vote in the House. Not only was the bill left alone by Republicans, Obama’s successor Donald Trump and his Republican-controlled Congress passed their own criminal justice reform that directly built upon Obama’s work (though labeling the bill “First Step” masked the lineage.)

You can’t blame Obama for the ACA’s failure to win Republican votes, because he bent over backwards trying to get some. And even though no Republicans obliged, he still needed to make compromises just to get  the Democratic caucus on board, just like Biden will have to make compromises to get any reconciliation bill passed on party-line vote. So the lesson of the ACA is not to always hold out for a simpler, more generous bill. The lessons are: make the compromises you have to make, don’t promise perfection, and prepare the public for hiccups.

The allure of filibuster abolition is the dream of passing your party’s wish list. Klein chastises Democrats collectively for having “never followed through” on statehood for Washington, D.C. and Puerto Rico, suggesting that the removal of the filibuster would allow that moral wrong to be righted. But Democrats didn’t move on this issue in 2009 when they controlled the House and Senate floor because they didn’t have the votes to create new Democratic-friendly states without concessions to Republicans.

They still don’t. In the last Congress, a DC statehood bill was cosponsored by nearly every Senate Democratic caucus member. But not quite all. Of those still in the Senate, Manchin, Sinema and King were not on the list. And on Wednesday, a new DC statehood bill was introduced with only 39 sponsors. So even if the filibuster was gone, there is still no guarantee Democrats would have 50 votes for statehood.

This reveals a political problem with removal of the filibuster. In theory, it gives Democrats free rein to pass their agenda. But the Democratic Party is a big tent party with narrow congressional control. Expectations among Democratic base voters would reach utopian heights, then could plummet in newly exposed rifts, leading to debilitating intra-party recriminations. (Expectations are currently escalating for a $15 federal minimum wage, possibly via reconciliation. But when Sen. Bernie Sanders released his $15 minimum wage bill on Tuesday, he had 38 sponsors, not 50.) When bipartisanship is the name of the game, blame for any failures can potentially be pinned on the other party. In one-party rule, all blame is yours and yours alone. And that could lead to a very, very bad 2022.

So progressive reaction to the refusal of Manchin and Sinema to nuke the filibuster should not be despair. Nor should it be wishful thinking that the two will eventually change their minds upon relentless Republican obstruction. The reaction should be renewed determination to make the system work.

Winning 60 votes for most legislation will be a steep challenge, but it is a challenge progressives should relish, pressing Republicans to cooperate or risk punishment at the polls. Don’t set Democrats up for failure; demand Republicans participate in success.

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Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"