KOZMA: Democrats need to abolish filibuster now

After winning the House of Representatives in 2018, Democrats passed the For the People Act (H.R. 1). The most ambitious democracy reform since the Voting Rights Act of 1965, H.R. 1 would effectively abolish partisan gerrymandering, ensure automatic voter registration, end criminal disenfranchisement and expand early and mail-in voting.

It would put a swift end to voter suppression attempts and restore the people's right to rule this country through free and fair elections.  

Yet no Republicans voted for it. Then, former Senate Majority Leader Mitch McConnell (R-Ky.) refused to bring H.R. 1 up for a vote in the Senate, slandering it as the "Democrat Politician Protection Act" — never mind that it would ban both Democratic and Republican gerrymandering or that it would restrict the dark money that benefits both parties.  

But McConnell, now minority leader, cannot unilaterally blockade the House's bills. So when Democrats pass H.R. 1 again, Senate Majority Leader Chuck Schumer (D-N.Y.) can at least bring it up for a vote. Unfortunately, it is still dead on arrival, unless Democrats can unite in abolishing (or at least severely weakening) the filibuster.

The filibuster was once an obscure procedure allowing any Senator to indefinitely delay a  vote on legislation so long as he held the floor. Doing so disrupted the Senate's business and earned few friends in the chamber, so it was rare.

To defeat a filibuster in 1917, the Senate adopted Rule 22 to end a debate with a two-thirds vote. In the 1970s, this threshold was lowered to three-fifths, but a "two-track" system was adopted, allowing the Senate to move onto other votes in the case of a filibuster.  

This reform, though well-intentioned, removed much of the political cost to filibustering.  A Senator now needs only communicate his or her intention to filibuster. Unless 60 Senators override them, the bill is dead. Nonbudgetary legislation now requires a three-fifths supermajority to pass, an extraordinarily high hurdle not found in any other representative democracy.

Filibuster fans suggest that, while frustrating, this is simply part of the checks and balances envisioned by the founders to prevent "tyranny of the majority." That would be news to the founders, who explicitly included no supermajority requirement for routine legislation.

When they wanted supermajorities — for veto overrides, Constitutional amendments, etc. —  they made that clear. But for normal Senate activity, the Constitution simply says that the vice president "shall have no vote, unless (the Senate) be equally divided," suggesting they expected legislation to often pass with a simple majority.

Alexander Hamilton critiqued the logic of supermajority requirements in Federalist 22.

He said, "When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods."

The filibuster forces not compromise, but paralysis. It protects minorities, yes, but which ones? There is a difference between being outnumbered and being oppressed — the filibuster has not done much historically for the latter.

White supremacist Southern Democrats were a minority when they filibustered every civil rights bill from 1890 to 1964, but that kept the Black minority in "the same unfavorable posture" of segregation and disenfranchisement.  

Some on the Left make the practical argument that what goes around comes around — it is unwise to make it easier for Republicans to pass their agenda when they could regain trifecta control of D.C. as soon as 2024.  

First of all, what agenda? Republicans did not even adopt a platform in 2020, offering only personality cults and cultural grievances. The few things they care about — cutting taxes and confirming judges — they can do with 51 votes. Republican disunity, not Democratic obstruction, saved Obamacare.

Besides, if they unite on some policies sometime in the future, they ought to have the chance to enact them. Voters can then judge whether they like banning abortions or abolishing the Environmental Protection Agency and vote accordingly.

Second of all, Republicans do not need permission from Democrats to enact their priorities.

Arguments that say Harry Reid's abolition of the lower-court filibuster in 2013 led to this predicament naively assume that had Reid done nothing, McConnell would not have simply continued filibustering former President Barack Obama's nominees, left even more vacancies for Trump to fill and abolished the judicial filibuster anyway when Democrats started obstructing Trump's nominees.

McConnell resisted Trump's calls to abolish the legislative filibuster because he understood that it hinders Democrats more than Republicans over the long term. If it did not, he would have abolished it just like he abolished the Supreme Court filibuster in 2017.

Elections have consequences. Those few Senate Democrats still committed to the filibuster need to realize they were not elected to sit on their behinds and collect a government paycheck. Democrats are in control for the first time in a decade — they ought to act like it.

Thomas Kozma is an Edward J. Bloustein School of Planning and Public Policy junior majoring in planning and public policy. His column, “With Liberty and Justice for All,” runs on alternate Thursdays.

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