Two Ways to Deal with the Senate Filibuster

Even if Democrats take back the presidency and the Senate (and hold the House), a major impediment to passing any progressive legislation will the Senate filibuster, the requirement of sixty of the hundred senators to agree to bring a bill to the floor to vote on it. Essentially, the filibuster is a supermajority requirement that provides the minority with a veto. Among the Democratic candidates, Warren has called for eliminating the filibuster, so legislation would only require a majority vote–which has already happened regarding judicial nominees. I prefer eliminating the filibuster, since a party that wins unified control of the government should be able to govern.

Sanders, on the other hand, takes an approach to the filibuster which is very different (boldface mine):

“No,” Sanders replied when asked by a moderator if he supported its abolition. “But what I would support, absolutely, is passing major legislation, the gun legislation the people here are talking about—Medicare for All, climate change legislation that saves the planet. I will not wait for 60 votes to make that happen, and you can do it in a variety of ways. You can do that through budget reconciliation law. You have a vice president who will, in fact, tell the Senate what is appropriate and what is not, what is in order and what is not.”

What makes Sanders’s answer so unusual is that it’s simultaneously less radical and more radical than what Warren and other candidates have proposed. Filibuster reform doesn’t yet enjoy widespread support among Senate Democrats, but its proponents are growing in numbers. Harry Reid, the former Senate majority leader, even called for it to be scrapped last month in a New York Times op-ed. “If a Democratic president wants to tackle the most important issues facing our country, then he or she must have the ability to do so—and that means curtailing Republicans’ ability to stifle the will of the American people,” he wrote.

At the same time, Sanders’s proposed solution to the problem posed by Mitch McConnell’s hardball tactics is even more audacious than what his rivals have proposed. The reconciliation process allows certain budget-related pieces of legislation to pass through the Senate by majority vote instead of the 60-vote filibuster threshold. This is how Republicans brought the failed health-care bills up for a vote in 2017.

By rule, reconciliation can only be used if the legislation in question meets certain deficit-related criteria. The Senate’s parliamentarian normally decides what can or can’t be passed through reconciliation. Sanders would bypass this roadblock by simply instructing the vice president—the Senate’s presiding officer—to disregard the parliamentarian’s judgment and allow the bills to come up for a majority vote anyways. It’s a step further than anything McConnell—or President Donald Trump—has suggested. In practical terms, this would also remove the filibuster as a potent force in American politics—but at the cost of destabilizing much of the Senate’s rules and procedures under future vice presidents.

“I would remind everyone that the budget reconciliation process, with 50 votes, has been used time and time again to pass major legislation and that under our Constitution and the rules of the Senate, it is the vice president who determines what is and is not permissible under budget reconciliation,” Sanders’s campaign said in a statement last week. “While a president does not have the power to abolish the filibuster, I can tell you that a vice president in a Bernie Sanders administration will determine that a Green New Deal and Medicare for All can pass through the Senate under reconciliation and is not in violation of the rules.”

While I prefer eliminating the filibuster entirely–the solution to less democracy is more democracy–this would have the effect of making the position of vice president meaningful. It also would mean that the filibuster could be ‘reinstated’ by a vice president (e.g., by a Democratic vice president to assist a Democratic Senate minority). That said, it can only be used three times per year, and must involve budgetary issues, so a stand-alone minimum wage bill couldn’t be shoved through with this mechanism.

Interesting proposal, but we need to kill the filibuster.

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