By Shutting Down the Senate

There is only one way to fix the Senate and democracy: stop consenting to dysfunctional rules and obstruct in the name of stopping obstruction.

American democracy is at a crossroads, and the rules of the Senate are the decision point. The majority of the public voted against Trump and the Republicans. Despite structural obstacles, the Democrats eked out a trifecta: majorities in the electoral college, the House, and the Senate. But the majority is thwarted by Senate rules that enable obstruction.

There is a clear route to changing the rules if all 50 Democratic Senators agree. Majoritarian rule would enable the adoption of laws that could expand the electorate, reduce partisan gerrymandering, and possibly mitigate the malapportionment of the Senate by adding new states.

Democracy at Stake

Emboldened by ex-President Trump’s insistence that he was defrauded out of re-election, Republican state legislators are passing dozens of laws to reduce voter turnout and empower elected officials to intervene in election outcomes.

With the filibuster gone, Congress could react. The For the People Act corrects longstanding problems in American democracy by easing voter registration, allowing ex-felons to vote, and requiring independent redistricting commissions. The John Lewis Voting Rights Act would restore the Voting Rights Act that has now twice been defanged by an activist Supreme Court, including the blatant rewrite of the act that was its July 2021 Brnovich decision.

The ability of the majority to prevail in policy decisions is in itself a key element of democratic self-governance. Permitting the Republican minority to veto legislation severely hampers what the country can do to address climate change, the most severe problem of our time.

National Election Reform

The For the People Act and the John Lewis Voting Rights Act have already passed the U.S. House. Among other things, these laws would:

• Increase voter participation by requiring states to automatically register new and moving voters and allow registration online, and on election day. In 2020, eight of the top 10 highest turnout states had election day registration, and a ninth, Oregon, was the first state to adopt automatic voter registration and universal mail voting.
• Restore voting rights for former felons. In 2020, 3.3 million U.S. citizens no longer in prison were denied the right to vote due to a felony conviction, and about 1 million of these were in Texas, Georgia, and Florida, all of which are or may soon be closely competitive at the state level among the two parties.
• Require independent commissions for redistricting. There is not much time left to implement this reform before the current round of redistricting following the release of 2020 Census data. Failure to pass the act could give Republicans an unearned electoral advantage in the House for another decade.

Senate Rules are the Last Obstacle

Senate rules are the obstacle to majority rule. The Senate requires a simple majority to approve legislation — as is the norm around the world and in every other US. legislature. However, it takes 60 votes to end debate, and almost all motions are debatable — even a motion to begin debate. The minority routinely prevents bills from ever coming to a vote.

A Precedent for Majority Rule

In 2013, Harry Reid used the precedent system to effectively eliminate the filibuster on nominations, except to the Supreme Court — while not actually changing the written Senate rules. In 2017, the Republican majority extended the precedent to Supreme Court nominations. Thus both Democratic and Republican majorities have endorsed precedent as a way to change the filibuster rule. (Actual change to the written rules requires a vote which can be filibustered.)

More than ever, Democratic Senators see the filibuster as anti-democratic, or at least abused. In the face of unified Republican opposition every single one is needed to support reform in the evenly divided Senate. The two avowed holdouts are Senators Joe Manchin (WV) and Kyrsten Sinema (AZ). Although both represent states that lean Republican, they are not closet Republicans. Manchin, a Catholic, is an admirer of President Kennedy. Sinema came to politics as a progressive. To the contrary of what Sinema and Manchin have argued, the filibuster happened by accident, not design, is unrelated to the constitutional design of the Senate, has only existed briefly in its current form, and is neither necessary nor sufficient to create bipartisanship and compromise. Appeals to reason, conscience, or party are unlikely to work with these two right-leaning Democrats, since they are apparently unwilling to re-examine their belief that the filibuster is an essential component of democracy.

Filibuster Reforms that Won’t Work

Several filibuster fixes have been promoted. Unfortunately none of them seem promising:

The Talking Filibuster

Both Joe Manchin and Joe Biden have supported a return to the talking filibuster. The majority could easily undue the 1972 innovation of putting filibustered legislation on a separate “track” while letting the Senate conduct other business. That was done by the Speaker without any official change to the rules. By contrast, in 1975 reformers succeeded in getting the rules eased— but with the unintended consequence of creating the silent filibuster. Although the share of votes needed to end debate was reduced from 67% to 60%, the base was changed from those present and voting to the total number of Senators, whether in the chamber or not.

What would happen if the majority insists that obstructionists actually hold the floor? As law professor Jonathan Siegel writes, “A filibustering minority senator, made to talk into the wee hours, could demand a quorum call. Which means that even though the minority only has to have at least one senator present at all times to hold the floor, the majority has to have enough senators present to make a quorum. With only 50 Democratic senators, that means all of them. So if Majority Leader Chuck Schumer wanted to keep the Senate running all night to try to break a filibuster, he’d have to arrange for all 50 Democratic senators to be available to show up at any time all night.”

Lower the Threshold

Another option that has been discussed, and that Manchin has considered, is to reduce the votes needed to end to debate, although still a supermajority. Since Republicans are almost completely united in their opposition to any legislation supported by Democrats, it is unlikely that reducing the threshold to 55 would currently have any effect — and this reform is unlikely to gain the support of Manchin, who has since said that he opposes weakening the filibuster.

Make an Exception for Voting Bills

Senator Raphael Warnock (GA) and others have proposed a “carve-out” from the filibuster for voting rights legislation. However, Manchin is opposed, so it is unlikely that this will be implemented.

Use Reconciliation

The most prominent workaround is the reconciliation process, a budgeting procedure that includes a limit on debate by statute. Senators such as Bernie Sanders would like to have every piece of legislation stuffed into reconciliation bills. Unfortunately the Senate parliamentarian does not agree, and has nixed such non-budgetary items as a minimum wage increase. Certainly election reform is not a budget item.

Wait Until Manchin and Sinema Change their Minds

Senate Majority Leader Chuck Schumer has said that “failure is not an option” with regard to election reform — but Republicans filibustered the motion to begin debate on that bill. Senator Manchin supported a bill to create a bipartisan commission to investigate January 6, as did 53 other Senators including six Republicans — but that bipartisan supermajority was not enough to save it from obstruction. Manchin issued an (unsigned) memo outlining his support for a scaled-down elections reform bill, including a national voter ID requirement. But no Republicans have signed on, and only one supports the John Lewis Voting Rights Act. The evidence is overwhelming that the Senate rules discourage bipartisanship, prevent debate, and debase democracy. Yet Manchin and Sinema have not budged from their “no changes” position.

A Way Forward

There is no good solution to this dilemma, but there is one that has not yet been tried. Manchin and Sinema have such deep faith in the filibuster that they would apparently prefer to see most of their party’s agenda defeated, and the chances at retaining political control greatly reduced, than to interfere with the minority’s right to obstruct.

The only way to defeat obstruction is with more obstruction.

Senate rules are completely dysfunctional, allowing for unrestricted, non-germane debate. According to the Congressional Research Service, “It is precisely to avoid these conditions that the Senate often debates, amends, and passes bills under very different sets of parliamentary ground rules. . . that can be imposed only by unanimous consent. . . . they require the concurrence or acquiescence of each and every Senator. . . . the Senate relies every day on unanimous consent arrangements. From routine requests to end a quorum call to extremely elaborate and complicated procedural ‘treaties,’ the Senate depends on unanimous consent requests and the willingness of Senators to agree to them.” There are many dilatory measures that determined Senators can use.

We need to find one democracy-loving Senator to withhold consent to everything until the rules are changed to prevent obstruction. There are many already committed to rules change, including Senators Jeff Merkley, Richard Blumenthal, Amy Klobuchar, Brian Schatz, Ed Markey, Tina Smith, and Elizabeth Warren.

Broadly rewriting the Senate rules will be necessary. We know this because Sen. McConnell has said so. If the Democrats ever ease the filibuster rule, McConnell says he would retaliate to create a “scorched earth Senate . . . like a hundred-car pile-up. Nothing moving.” He can do so because the Senate “is an institution that requires unanimous consent to turn the lights on before noon.”

So let at least one democracy-loving Senator vow to withhold consent, stopping all business, until the rules are changed to prevent him or her from from doing so— a reform that he or she will gladly vote for. This strategy worked once before: in 1893–94, Republican House leader Thomas Reed, then in the minority, forced the Democrats to re-adopt his majoritarian rules. Here’s how it went down: “the Republicans began one of the most prolonged and extraordinary filibusters in congressional history: a permanent filibuster to force a change in the rules of the House. . . . For months, the Democrats were so committed to minority rights that they endured delay, defeat, and embarrassment rather than empower themselves. After seven and a half months, the Republicans got their wish: the Democrats proposed a rule depriving them of their filibustering tactics.” The rule passed with unanimous Republican support, and is the reason we no longer talk about filibusters in the House. (Source: Gregory Kroger, Filibustering: A Political History of Obstruction in the House and Senate. The University of Chicago Press, 2010)

Anyone obstructing for the sake of democracy will certainly be called a villain for failing to respect the alleged “comity” of the Senate. But preventing the Senate from ever voting on legislation, or even beginning to debate it, as has become routine, is not comity: it is obstruction. And to those who support obstruction because they believe that a determined minority has the right to veto the majority: how can you then deny the right of a determined minority to obstruct because they feel strongly that the majority should rule?

The fighters for democracy might consider refusing to support legislation put forward under reconciliation, on the grounds that everything should go through “regular order,” and that the unelected Senate parliamentarian should not determine the nation’s agenda.

The stakes for Manchin and Sinema will increase. They may not be content to serve in a Senate that struggles to conduct any business. Despite their criticisms of its size, there may be items in the proposed reconciliation bill that they favor.

President Biden says we wants voting reform, but he is not fighting to fix the Senate rules. In fact, he has said that eliminating the filibuster would “throw the entire Congress into chaos and nothing will get done.” Well, let’s start with getting nothing done and force him to make rules change a priority.