Filibuster Reform Is No Longer Enough
A plea for strategic forethought.
Bringing the broad left around to the importance of abolishing the filibuster has been a decades-long project.
Happily, we’ve reached the cusp of success. The bad news is we’re already too late—unless we expand our horizons.
The time to act, the last moment when filibuster abolition might have constituted a sufficient procedural reform, was 2021. In 2021, two Democrats out of 50 stood in the way of filibuster reforms that would’ve allowed the Senate to pass important democracy protections. These Democrats, both of whom retired in short order, may have served as heat shields for a handful of weaker-willed skeptics. But it was clear that reformers had won the argument within the party. Abolition was only a matter of time.
Today, it seems quite likely that the time will come in January 2029. Donald Trump is incompetent and destructive; fixing the country will require immense effort. Democrats will be in no mood to allow Republicans to sabotage the recovery.
But now filibuster reform won’t be enough to stop them. It might actually, on its own, increase Republican power, without any predictable, concomitant benefit for Democrats. That’s not to say filibuster abolition has become a bad idea. But it is no longer commensurate with establishing something resembling a fair two-party democracy.
If Democrats aren’t willing to go further than filibuster reform, it’s no longer clear that they should bother with any reform at all.
This essay is thus an appeal to filibuster abolitionists—whether they work in politics, or on the sidelines with me—to stop treating filibuster abolition as a goal unto itself. It must specifically be paired with court expansion (along ideally with a broader suite of reforms) or else Republicans in Congress will simply cede more obstructive power to partisan judges. The Senate will function better, but it will become a conduit for bills to nowhere, at least when Democrats are in power.
The good news is most democracy reformers outside of politics are already with me on this. The bad news is most Democratic elected officials, the ones with the power to update our democratic infrastructure, are not.
Almost two decades ago, Republicans transformed the filibuster into the principal obstacle to democratic governance in America. Eliminate it and we’d unlock a door to a brighter future—or so we imagined.
Unfortunately, it took us too long to gain adequate buy-in among elected Democrats—which in and of itself is fairly insane. The filibuster remains a major impediment to Democratic priorities, and Democratic priorities alone. Most Democrats at long last support abolishing the filibuster, but it took the hobbling of the Obama agenda, the theft of the Supreme Court, and relegation to second-class status in a two-party democracy to bring them around. Absent those developments, the left would still be paralyzed by risk aversion.
When liberal gadflies first started agitating for filibuster reform a bit over 20 years ago, we faced unsurprising skepticism. The precipitating incident was a fight over Republican judicial nominees. George W. Bush had nominated a few extremists to appellate judgeships, Democrats were using Senate filibuster rules to block them, and Republicans were threatening to invoke the so-called “nuclear option” to get them confirmed.
The Senate’s standing rules are very hard to change, but its day-to-day functioning turns on precedent, which can be set by simple majority. So for instance, the standing rules hold that “three-fifths of the Senators duly chosen and sworn” can end debate on any “measure, motion” or other matter pending before the Senate. But if 50+1 senators decide that debate on subcategories of Senate business (like legislation, or nominations) can be brought to a close by simple majority, they can create that exception pretty much whenever they want.
Voila, no more filibuster. That’s the nuclear option.
Back in 2005, liberals overwhelmingly supported Democrats in their effort to block these judicial nominees, and derided the GOP’s nuclear option threat as a power grab. A small minority of us, thinking more than one step ahead, recognized the error. Sure, these would be terrible judges, but Republican judges are terrible in general, and if Democrats wanted a fair shot at governing post-Bush, they shouldn’t line up behind the idea that 40 Republicans senators should be allowed to passively block them. Plus, it’s a democracy: majorities should rule, then voters should decide whether they like the outcomes. So let the Republicans go nuclear!
That standoff eventually ended without a change to the filibuster rules. And most progressives felt they’d dodged a bullet. If Republicans eventually did away with the filibuster, they fretted, Democrats wouldn’t be able to block Republican bills to crush union organizing. Or restrict abortion nationally. Or suppress Democratic voters. Or deregulate industry. Or…
This became consensus wisdom that locked most Senate Democrats into support for the filibuster for the next 15 years. Opposition to filibuster reform boiled down in essence to “careful what you wish for”—but that, ironically, was when the monkey’s paw curled. Mitch McConnell realized he could use the filibuster as a tool of total obstruction when Republicans were in the minority. Then, in the majority, he and his members could use the budget process, where filibuster rules don’t apply, to pass their tax cuts. And they could rely on partisan judges to do the rest of their governing for them from the bench. Democrats saw all kinds of priorities scuttled by a legislative supermajority “requirement.” Meanwhile, Republicans imposed the parts of their agenda they value most. They cut rich people’s taxes while the courts helped them crush unions, restrict abortion nationally, suppress Democratic votes, and deregulate industry. Ah well!
This horrible status quo—a double-standard no party could tolerate—should have united the party in defense of its own interests. It has, instead, accentuated Democratic infighting in perverse but inevitable ways.
The broad left today is divided into camps with competing ideas about how to transform policy into political power and vice versa. This is common enough—every party in a democracy like ours will comprise rival factions. But on close inspection, they’re not really arguing on any merits, not for the most part. They’re mostly arguing that their ideas are strategically required to overcome obstacles to liberal governance.
Our post-neoliberals say we need to break up private-sector behemoths and flatten political power, so regular people can better shape their own destinies. In other words, a rigged democracy can’t be responsive to voters.
Our abundists, in their purest form, argue we should unshackle government from self-imposed obstacles to growth and infrastructure. In other words, a rigged democracy can’t be responsive to voters.
Our deliverists believe Democrats are hobbled by the mismatch between lofty promises and shitty governing results. In other words, a rigged democracy can’t be responsive to voters.
They’re all frustrated, because all their goals are bottled up by minority obstruction.
Again, every party in a democracy like ours will comprise rival factions—but the bad blood in today’s Democratic Party is symptomatic of system failure more than of ideological incompatibility.
When Democrats do come to power, they are lucky to pass more than a couple significant pieces of legislation. The liberal advocacy community has descended into bloodsport, because the stakes are impossibly high, and the window for action impossibly narrow. They’re clashing less over the content of ideas than over who’s in the driver’s seat in those rare instances when Democratic legislating is possible. They’re jockeying to control a finite, artificially constrained resource, and, thus, have come to hate each other.
Abolishing the filibuster is a first and necessary step to ratcheting down these tensions. But in this 15 years of dithering, Republicans have radicalized ever further against democracy. They have new ways to stymie their opponents, ensuring the double-standard persists even if the filibuster disappears. Today, if Democrats don’t broaden their ambitions, it’s easy to see how filibuster abolition actually would boomerang on them, the way progressives once feared.
What a relief it would be to wake up tomorrow and find we’d slept through to January 20, 2029, and the swearing in of a Democratic president with House and Senate majorities.
What a bigger relief if Democrats commemorated inauguration by abolishing the filibuster and passing a raft of bills to put the pieces of the country together again. Everyone gets their health care back. A statehood bill. A housing bill. A clean energy bill. A bill to de-Trumpify the executive branch, including by abolishing ICE. All supplemented by a regulatory regime to protect Americans from an invasive A.I. industry and intrusive government contractors whose executives are loyal Republicans. All of that…but no court expansion. The votes aren’t there. Plus Democrats have convinced themselves that the entire GOP apparatus has been chastened, judges and all.
Still, they move fast. And it feels like a strong start. Until! Most or all of it gets enjoined by the GOP’s favorite lower-court judges, making implementation impossible. Months trickle by. Democratic power falls to a low ebb, at which point the Supreme Court throws out the party’s agenda altogether.
It’s not that the courts weren’t a problem under Obama and Biden. But they have become more partisan, and the Supreme Court in particular has become fully corrupted—an unmasked agent of Republican power.
All of that capital and time, spent down in a flurry of filibuster reform and legislating, only to be told SORRY, you should’ve packed the court first! Think of what the Virginia Supreme Court just did to Democrats earlier this month—overturning a referendum of sovereign voters—but on a national scale, across the entire issue space.
It was once reasonable to conceive of filibuster reform as a piecemeal step. Further reforms might be necessary down the line, but it would go a long way on its own to restoring fairness in the political system.
No longer. Today, without simultaneous reforms to the court, filibuster abolition would represent a pyrrhic victory. It would actually create the perverse consequences progressives warned us about 20 years ago. Both parties would be free to legislate to their hearts’ content, but only Republican priorities would survive judicial review. By sheer coincidence, the Republican agenda would prove constitutionally immaculate, while most elements of the Democratic agenda would turn out to violate some recently discovered principle of jurisprudence. Them’s the breaks!
So we should all be court reformers now. We should also be statehood advocates, because without new states, even a filibuster-free Senate, with courts in check, would leave Republicans at an intolerable representational advantage.
But the judiciary is the big one. We don’t just need the last few Democrats to come around on the filibuster. We need them to decide whether or not they really want to establish fair play—and then to either act in fullness or not at all. If they’re too scared to implement the reforms required to give both parties equally free hands to govern, they should just admit defeat and do nothing.
Is anyone in the party reading these informative and on the point takes at all? I feel like all the smart people (almost none with actual political power) are screaming in the wind and the actual people with power would rather crash the airplane because they are too comfortable to get out of their passenger seats and get into the pilot seat to land the plane.
The cowardly elected Democrats are literally doing the shameful opposite behavior of what the heroic passengers on Flight 93 did on September 11, 2001.
Outstanding argument as usual. Clear and compelling. It's frustrating that those with power to influence the party's strategy are not receptive to these ideas, and perhaps not even equipped to deal with them. I can only imagine how frustrating it must be for you.
I think your point about how GOP-induced dysfunction and obstruction alters and worsens the intra-Democratic dynamic is a vitally important one.
For a long time, I've thought that Boyd's OODA loop (Observe-Orient-Decide-Act) is a useful framework for thinking about the two party's strategy-action pipeline. The GOP is so far inside the Dems OODA loop that it is not a dogfight but a massacre. The Dem leadership is unimaginative, risk averse, and sclerotic. So many elected Dems (esp. the "centrists") seem to be fully enmeshed in abstraction -- pitting an abstract "left" with an abstract "moderation" (i.e., toward GOP positions) -- divorced from actual values, real-world problems, or practical and political effectiveness of policy. Only a few have been speaking and acting with real moral clarity.
You point out that we missed the last opportunity to make an impact (with filibuster reform). If we miss the next opportunity (democracy reform and reconstruction), another opportunity will not come for a long time. I fear that the Dems are not up to it.
Thanks for a great piece!