To many Americans, the rules that permit the Senate’s majority to be held hostage by its minority represent the worst of all worlds, making an inherently undemocratic legislative body even more so.
As a result, since the late 1940s, successive generations of liberal senators have regularly sought to revise the procedures for limiting extended Senate debate — known as a filibuster — that enable a minority of senators to keep the majority from acting.
The debate was renewed this year because the Senate’s slim Democratic majority — 50 senators plus Vice President Kamala Harris — fears that, without rules reform, the Republican minority will block many of its measures that polls show most Americans support — election reform, gun control, an increased minimum wage, higher taxes on the wealthy and revision of immigration laws.
But history warns that changes may prove counterproductive. While easing the current 60-vote requirement might let liberals pass their favored items today, a future Republican majority could use it for purposes they would regard as dangerous.
After all, rules changes made in the 1970s to make it easier to limit the minority’s delaying tactics have done just the opposite. Where filibusters were once used to stop a small number of high-profile measures like civil rights bills, now they are used against everything from motions to consider routine bills to approval of presidential nominations.
In 2013, then Majority Leader Harry Reid succeeded in approving a rules change permitting a Democratic majority of 51 votes to confirm federal district and appeals judges nominated by President Barack Obama. But when Republicans regained control, Majority Leader Mitch McConnell extended the rule to permit 51 GOP senators to seat three Supreme Court justices chosen by President Donald Trump.
The Senate’s real problems go far beyond the construction of its rules. In effect, a combination of the country’s changing population patterns and its increased political polarization has created a situation where it is easier for a minority of Americans to elect a Senate majority than for the majority.
Though the Constitution’s framers intended the Senate to be a brake, not a barrier, the problem starts from giving small population states like Wyoming and Rhode Island, with fewer than 1 million residents, the same two senators as California, with nearly 40 million. That’s unlikely to change; Democratic proposals to give Washington, D.C., and Puerto Rico statehood would likely bolster their party’s ranks — which is why they won’t pass.
Though the 100 Senate seats are currently equally divided between Republicans and Democrats (including the two independents who caucus with the Democrats), Daily Kos Elections, a liberal website, calculated the 50 Republicans represent 43.5 percent of the American people and the 50 Democrats represent 56.5 percent.
And though the majority has changed hands eight times in the past 40 years, the balance between the parties hasn’t varied much. When the 60-vote standard was adopted in 1975, the Democrats held 60 of the 100 seats. Two years later, they reached 61. But since the 1980 election, the Republicans have never held more than 55 and the Democrats surpassed 57 just once, holding 60 for nine months in 2009-10 before the GOP won a special Massachusetts election.
As the two parties have become more and more polarized, it has become harder for the majority party to attract enough members of the minority to reach the 60-vote threshold. But the minority almost always had the 41 votes needed to prevent action.
Some liberals hope legislative gridlock on Biden’s long overdue proposals to expand voting rights, curb access to firearms, and immigration reform will persuade the holdouts to change their minds. But so far, it’s mostly an academic debate because two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — and possibly others — flatly oppose lowering the threshold from 60 to 51.
Manchin made a strong case in a recent op-ed in The Washington Post, citing what’s happened with judicial nominations and concluding, “Every time the Senate voted to weaken the filibuster in the past decade, the political dysfunction and gridlock have grown more severe.”
And some analysts have cautioned that, just as happened with judicial nominations, action by the Democrats to end the legislative filibuster could allow the next Republican president and Senate to pass an agenda banning most abortions and nationalizing the kinds of voter restrictions many GOP-controlled states are enacting this year. (Fear of what might happen if the opposition took control was one reason McConnell resisted when Trump talked of scrapping filibusters.)
It would also turn the Senate into a smaller version of the House, ruled in all instances by the smallest possible partisan majority.
Majority Leader Chuck Schumer faces a tricky balancing act. On Biden’s basic economic proposals, like his infrastructure and tax plans, the existence of the budget reconciliation procedure provides a path for Democrats to act alone.
But because some Democrats oppose scrapping the filibuster, his only real hope for action on issues like gun control and immigration is to modify his party’s preferred proposals to attract enough Republicans without the added rancor from a rules fight.
And that may be just as well.