The Supreme Court’s radical shift to the right — sharply narrowing states’ ability to regulate firearms or prevent religious coercion in schools, hobbling federal efforts to fight climate change and public health threats, overruling Roe v. Wade, and much more — has brought even more insistent demands for abolishing the filibuster. Doing so now seems to be the first step in most prominent progressives’ plans for correcting what the court and the Trump administration have done or for safeguarding our teetering democracy.
Obsessing about the filibuster will lead to disaster.
First, the filibuster is not going anywhere. And second, the progressive cause would be devastated if it did. The longer progressives focus on the get-rich-quick scheme of eliminating the filibuster, the more time will be lost for developing viable plans to protect open democracy and defeat efforts to reverse almost a century of progress. This is time we cannot afford to waste.
The debate over the filibuster exemplifies much that is wrong with progressive discourse today. Some loud voices, many stunningly ill-informed, seized on eliminating the filibuster as the cure-all for every problem. Many others have jumped on the bandwagon, much preferring this seemingly quick and easy fix to the difficult choices and hard work that would otherwise be required. When anyone dares to express contrary views, they are harshly condemned, their arguments largely ignored.
In fact, the filibuster is not going anywhere. Many assume that, because only Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) voted to preserve the filibuster, all other Democratic senators are on-board. They are not. We do not have 48 senators willing to cast decisive votes to end the filibuster; we may not even have 40.
But the shrill, unreasoning venom unleashed on those questioning the anti-filibuster orthodoxy has led other Democratic supporters of the filibuster to hide behind Manchin and Sinema. By driving senators with thoughtful reasons for supporting the filibuster underground, progressives give up any chance of engaging and possibly changing their minds. The delusion that the filibuster’s defeat is within reach has prevented the progressives from making other plans.
A central claim of this orthodoxy is that the filibuster serves no useful purpose because Sen. Mitch McConnell (R-Ky.) will end it as soon as Republicans regain power. Yet filibuster opponents have no answer to the most obvious response: If that is so, why did McConnell not even attempt to end the legislative filibuster in his six previous years as Majority Leader?
Doing so would have enabled him to achieve dramatic policy victories. If he could pass any legislation with just a simple majority, he could easily have added some inducements to the bill repealing the Affordable Care Act that would have brought at least one of the Republican dissenters on board.
Absent the filibuster, Congress would have enacted in 2017 a statute to hobble the Environmental Protection Agency, the Occupational Safety and Health Administration, and other federal agencies even more severely than the recent Supreme Court decisions did.
Congress could easily have passed legislation preempting state and local gun safety laws even more effectively than the Supreme Court’s recent Second Amendment decision. Many restrictions on civil rights would be uncontroversial within the Republican caucuses. And President Trump’s Mexican border wall would have been fully funded and built by now if it only took a simple majority.
Some of these moves could have been reversed when a Democratic Congress is subsequently paired with a Democratic president. But most worthwhile policies take time to implement and cannot achieve much if they are torn down each time Republicans win an election. And even in more ordinary times, U.S. voters liked to alternate the parties in power.
And if anyone had any doubts before, it should be clear now that the Supreme Court will not intervene against even the most extreme laws that a Republican Congress might enact.
Another myth is that the filibuster can be modified to exempt this or that issue but otherwise preserved. Any change would mean brazenly disregarding Senate rules, which require 67 votes to modify the filibuster. Once Democrats did this for their issues, Republicans would surely reciprocate.
Progressives’ real problem is losing way too many elections.
We have this Supreme Court because millions of progressives refused to vote for Al Gore and Hillary Clinton. Both were uninspiring, but neither would have nominated Samuel Alito or Brett Kavanaugh.
We have this Senate thanks to Democrats’ close losses in various blue and purple states — plus the inability of most Democrats not named Joe Manchin to win in red states.
Progressives can only protect the gains of the past and continue to move forward if they persuade more people that they are right on key issues. That means both electing more progressive officials and making more Republicans fear defeat unless they moderate their views and compromise. That is not a quick solution, but it is the only one that will work.
With authoritarianism a real threat, we should be strengthening constraints on what a reactionary Congress can do, not tearing down the few checks that remain.
David A. Super is the Carmack Waterhouse Professor of Law and Economics at Georgetown University Law Center. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1