If you care about American democracy, you need a Congress that works. If Congress can’t pass legislation or ratify treaties or confirm appointments, democracy isn’t working. And if Congress isn’t operating under some network of rules, some version of what the pros call “regular order,” then it can’t stand up to the president. It can’t be a check or a balance, like the founders intended.
It’s working this week—sort of. Joe Biden will sign his huge coronavirus relief package, pretty much as he sent it to Congress. It’s a big, $1.9 trillion tribute to him, but also to Nancy Pelosi and Chuck Schumer for keeping their caucuses unified so they could get this done. That meant keeping the House Left from derailing it and making sure Joe Manchin could be comfortable enough to vote “aye.” This is good. The country needed this: More unemployment insurance, money for vaccinations, funds to prop up state and local governments.
But Congress is still broken. The bill avoided a filibuster because it was passed under reconciliation, a process that they’ll be lucky to use a couple of times more. Now that the Democrats can’t rely on reconciliation for a party-line vote, the gears are going to grind. Mitch McConnell, who cranks out filibusters the way Smith & Wesson cranks out guns, is going to use them to shoot down Democratic legislation. He’s like LBJ when he was Senate Majority Leader except the Texan passed bills, like the first big civil rights law since Reconstruction. McConnell is “Dr. No.” He blocked Merrick Garland from going to the Supreme Court and put the kibosh on Obama initiatives on climate, education, and immigration. He’s going back to full time filibustering.
If the Democratic Party ever hopes to govern this country, it needs to end the filibuster.
The reality lies in the arithmetic. Right now, there are 21 states with two Republican senators. That 42 votes is enough by itself to uphold a filibuster, to kill senate action on any legislation.
Looking at the list of those 21 states, an objective observer can see it is not likely to change its party loyalty any time soon: Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. The loyalty of these states to the GOP defines the partisan power of the filibuster.
To begin with, there is the Constitutional nature of the Senate. It holds two members from each state regardless of population. This gives it a tremendous bias to Republicans.
This is because the roster of red states includes many rural ones with low populations. It compares with the giant Democratic states of California and New York and others in the Northeast.
Secondly, the filibuster allows the solid red bloc of 21 states to prevent the Senate from passing any legislation it wishes. They can do it without any help from other states. They can by themselves prevent a hike in the minimum wage and protections for voting rights.
As long as it’s in the economic interest of Republican voters and in the partisan interest of GOP candidates, these 21 states will give them the power to do so.
This is the math that encourages me to support those wanting to end the filibuster.
But there is another factor, as well. This isn’t about the rights of a minority senator or senators to demand a true debate over a legislative matter. It is not Jimmy Stewart in Mr. Smith Comes to Washington. It’s not about a voice crying out to be heard. No, it’s a basic question of the minority automatically using its ability to stop the majority from acting.
As E. J. Dionne writes, it’s about the power of a partisan minority to exploit the filibuster for partisan purpose. It’s what has forced the body to vote over a thousand times since 2007 on whether to end debate or not. And that means that as long as those 21 states remain reliably red, that verdict will be required on any bit of progressive legislation. It means that the death on the senate floor of any Democratic bill even before a vote on the actual measure is even cast.
This is the reckoning with reality Democratic senators need to face in coming weeks.
Again, here is the cruel but undeniable math. To reach the number of votes needed to pass a bill, they need 60 votes. They can only do that by winning 10 more seats than they have now in 2022 or later.
This means keeping all the 50 seats they have now. In addition, it means winning all the seats in states where Democrats now have one senator, plus winning both seats from one of the resolutely 21 red states.
When is that going to happen? In 2022? 2024? 2026? Ever?
And if it’s not going to happen, what precisely are the Democrats planning to do about it?
Using “reconciliation” to pass the COVID-19 relief bill was relatively easy. Democrats will need the regular order to do all the rest.
Democrats need to kill the filibuster and change the rules. But they need to abide by the ones that are there because those rules are good for Democrats, the Congress, and democracy. Congress works when there’s regular order, when bills are drafted, go to committees, get refined, and are eventually voted on by the entire chamber and worked out in conference committees before being sent on to the president. That’s how it’s supposed to work. That’s what we all got taught in civics, at least those old enough to remember civics. When you do it that way, the results may still be messy but there’s a much better chance of reaching consensus and getting things done.
What we have now is the worst of all possible worlds. Committees are often bypassed. Deals get worked out between leadership, often at the last minute to deal with a budget shutdown or debt ceiling hike or unemployment benefits running out. It’s a recipe for bad government and for more cynicism. When you bypass regular order, it lets the show horses like Ted Cruz dominate the stage instead of workhouses like Kentucky’s John Yarmuth, Chair of the House Budget Committee. While his fellow Kentuckian Ron Paul is always prancing in front of the cameras, and McConnell is Dr. No, Yarmuth plugs away. Regular order rewards the Yarmuths and diminishes the clout of the blowhards and obstructionists.
So, Democrats should play by the rules. It wasn’t a good sign that they wanted to ignore the parliamentarian to get the Biden plan passed.
It was supremely unfair for the Democrats to rip into Elizabeth MacDonough, the chief senate parliamentarian for her ruling on the $15 an hour minimum wage bill. She was doing what her statutory position demands when she said minimum wage couldn’t be passed through reconciliation.
Attacks on her ruling are a cheap shot. They reminded me of NBA fans who use their court-side seats so they can work the referee.
It is a valid comparison. Those who want the $15 minimum wage are willing to get it in the worst way. The job of the senate parliamentarians is to ensure they do it the right way. This is going to come up again as Democrats try to find a way around McConnell and the Republicans.
I served as an original staff member of the Senate Budget Committee. Much of my time in the years 1974 to 1977 went to explaining the just-enacted Congressional Budget Act.
My central argument was the need for the Congress to take back control of federal spending from the imperial presidency. That’s what the Budget Act did. It established Legislative Branch control over federal priorities and fiscal policy. Before then, Nixon and other presidents could impound money Congress has appropriated, like your bank freezing a check.
Leaders in both parties knew the problem. Before the 1974 act, the executive branch prepared the annual budget. It then assumed the power to enforce it. The Congress, for its part, lacked a defensible case against this perennial power grab. The fact was, it had no process for writing or enforcing a federal budget. Each of its spending and tax decisions was made separately. It had no process for bringing them into an overall plan. The Budget Act gave them that process. In so doing, it put the Congress into the driver’s seat.
First, it required that the Congress begin each year by passing a resolution laying out federal spending priorities and fiscal policy. Second, it had Congress reconcile all appropriations and revenue law to its budget plan. To protect itself, the Budget Act said this “reconciliation” bill could be passed in the Senate by a simple majority vote, not the 60 votes otherwise needed to offset a filibuster.
This is what the 1974 Budget Act was enacted for: to create a process for Congress to pass and then enforce a federal budget. It was to give the legislative branch integrity over fiscal matters. It was to give Congress control over the federal purse strings, a decision made by the country’s founders.
It was this legislative integrity that Chief Senate Parliamentarian Elizabeth MacDonough was courageously protecting in her decision to exclude minimum wage legislation from the reconciliation bill. Appointed to the top position of trust in 2012, she was acting to protect the congressional budget process from abuse and eventual destruction.
I was fortunate to serve under the Senate Budget Committee’s first chairman Edmund Muskie of Maine who would go on to become secretary of state.
He was a much-respected liberal who took the panel’s fiduciary role to heart. He knew that the 1974 Budget Act restored the legislative power that the U.S. Constitution intended. He knew that he, Ed Muskie, had the duty to enforce it. A non-partisan servant of the Senate, Elizabeth MacDonough is carrying on this fight for congressional integrity.
Democrats can’t keep trying to make reconciliation their escape hatch. They can only do that a couple of times. To make the American Rescue Plan the first and not the last Biden legislative victory they have to kill the filibuster or, in the absence of the votes, do whatever they can to defang it so McConnell can’t use it all the time.