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Dancing in the Dark, Part 2: The Paradoxical Risk of Senate Filibuster Reform

by Mark Medish & Joel McCleary

Apr 1, 2024 | Election 2024

PHOTO CREDIT: 
lazyllama

One reform proposal that many progressives curiously have in common with the presumptive Republican presidential nominee Donald Trump is their call for an end to the Senate filibuster. The prospect of quicker passage, or any passage, of popular legislation is alluring for self-evident reasons. Yet in view of Trump’s aggressive plans for radical policy and institutional changes that go to the heart of the American political system, the shared ambition to revise the Senate’s controversial procedural rules is cause for serious concern. Somewhat paradoxically, the filibuster could prove to be the best and last line of defense for democracy against a constitutional coup.

In our previous Dancing in theDark piece we showed how the House of Representatives holds the key to either enabling or preventing a constitutional coup in the presidential electoral process and the transition of power from November 5, 2024 through to the Inauguration on January 20, 2025. Specifically, based on several under-appreciated precedents in the parliamentary history, we explained how a bad faith revisionist majority in the House could potentially perpetuate itself in power and then manipulate the presidential certification process. We also outlined what steps could be taken by centrists and other good faith actors across party lines to mitigate these unconventional risks.

In this piece, we focus on the unique threats the Senate could potentially confront after January 20th if a bad-faith revisionist president comes to power.

Taken together, it is clear that both the House and the Senate can be targets of an overarching strategy to effect a constitutional coup. The shady scenarios in the House are esoteric but very real; the specific threats in the Senate are more familiar and equally real. In both cases parliamentary maneuvers in the dark pose threats to the Republic that must be blocked by acts of conscience and prudence.

The Senate presents an intriguing field of play because its ingenious state-centric design to reduce the risk of a tyranny of a popular majority can also turn into a formidable tool for forms of minority tyranny: not only gridlock but legislative cramdowns.

Indeed, there is a growing view, particularly among progressives, that the U.S. Senate, which fancies itself the world’s greatest deliberative body, suffers from two troublesome features. First and most fundamentally, the deliberative voices in the Senate are by design unrepresentative of the national electorate because each state has the same voting weight regardless of population. States with tiny populations such as Delaware (989,948, est. 2020), or Alaska (733,391) are equal on the Senate floor to those with massive populations, like Texas (30,503,301) or California (38,965,193). The disproportionate representation of small states is built into the Constitutional federal architecture as an integral check on overweening majorities and will not change short of amendment.

The second feature, which reinforces the first, is formalized in Rule 22. This is the Senate’s longstanding rule of procedure, established during WW1 at President Wilson’s urging. The rule allows for indefinite debate — or filibustering — on a bill until such time as a required supermajority of sixty votes (three-fifths of the Senate) can be achieved in support for cloture — the term that describes the end of the debate and the transition to a decision on legislation.

This supermajority hurdle can exert a chilling effect on legislative proposals that have little chance of obtaining sixty votes to end a threatened filibuster, and effectively allows policy positions that reflect minorities of public opinion to obstruct the process in the Senate and thus cause sustained gridlock in Congress.

The Senate presents an intriguing field of play because its ingenious state-centric design to reduce the risk of a tyranny of a popular majority can also turn into a formidable tool for forms of minority tyranny: not only gridlock but legislative cramdowns.

Both Senate features have their rationales and defenders, but the concerns are also valid in both political theory and practice. Ironically, it could be that the second anti-majoritarian feature may serve as an antidote for the first, namely the immutable state-centric structure of the Senate. The filibuster, which frustrates pro-democracy idealists, could in practice serve as the critical safeguard against a rogue Senate majority which is itself in the grips of an extremist minority, a not unlikely outcome of the 2024 election.

Cogent arguments in favor of eliminating the Senate filibuster can be found in Tyranny of the Minority, by Harvard political scientists Steven Levitsky and Daniel Ziblatt, which dissects what the authors believe are the anachronistic anti-majoritarian flaws in our country’s political architecture. They explain that while “most twentieth-century democracies took steps to eliminate minority obstructionism within legislatures” by imposing simple majority cloture thresholds, the United States, “once a pioneer and model for other nations, has now become a democratic laggard.” The Senate’s standing rule requiring a supermajority for cloture represents a vestige of the effective legislative veto power of the pre-modern British House of Lords.

But don’t just listen to academic political scientists about the democratic merits of reforming the filibuster. Seasoned practitioners in the Senate have been vocal and compelling on the subject. A few years ago, Adam Jentleson, a former aide to Democratic Majority Leader Harry Reid (D-NV) who pioneered a parliamentary maneuver called the “nuclear option” for reform of Rule 22, laid out a comprehensive historical and political theory case against the filibuster in his book Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.

There are basically two paths to eliminate the filibuster. The first option is a formal vote to change the provisions of Senate Rule 22, but this path would itself be subject to the current three-fifths cloture rule that applies to regular Senate votes, making it extremely unlikely to pass.

The second route is more Byzantine and involves creating a “new Senate precedent” — otherwise known as “reform by ruling,” which in some cases can be done by a simple majority vote. This sneaky maneuver is more popularly known as as the “nuclear option” and amounts to a parliamentary power play.

As Brookings politics commentator Molly Reynolds explains, “the nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order or claiming that a Senate rule is being violated. If the presiding officer agrees, that ruling establishes a new precedent. If the presiding officer disagrees, another senator can appeal the ruling of the chair. If a majority of the Senate votes to reverse the decision of the chair, then the opposite of the chair’s ruling becomes the new precedent.” In other words, a point of order is a parliamentary dance step that allows a simple majority to change the Senate’s customary procedural rules.

The nuclear option has been used by both parties to reduce the number of votes needed to end debate on judicial nominations — first by Democratic Senate Leader Harry Reid in 2013 and then by Republican Leader Mitch McConnell in 2017.

Exasperation with the Rule 22 filibuster, which effectively allows a single Senator to arrest the dance of legislation, is understandable. Students of comparative politics will recognize that the U.S. Senate practice distantly echoes the so-called liberum veto (free vote) in the 17th and 18th century Polish-Lithuanian Commonwealth which allowed a single member of the Sejm or legislature to shout “Sisto activitatem!” (“I halt the action)” or “Nie pozwalam!” in Polish (“I do not allow”). This peremptory veto power led to deterioration of the nation’s political order, contributing to internal paralysis and setting the stage for eventual collapse of the Commonwealth. History teaches that avoiding serial legislative gridlock is a highly meritorious objective for any durable political system.

Most recently, Senator Jeff Merkley’s (D-OR) new book Filibustered!: How to Fix the Broken Senate and Save America makes an impassioned pro-majoritarian argument for reducing the cloture barrier in favor of making it easier to get things done based on majority rule. There is a critical difference, he argues, between circumstances in which Senate rules act as a responsible check on rash decisions, and when they effectively impose legislative paralysis.

To improve things at the margin, Merkley proposes returning to the old “talking filibuster,” which requires Senators to physically take the floor and give speeches to obstruct legislative action and forestall a vote, rather than simply withholding their vote like the Polish liberum veto. Merkley stops short of endorsing the launch of a wholesale nuclear option to eliminate Rule 22, but proposes instead a “mini-nuke option” of restricting the filibuster on motions to amend bills and to bring bills to the floor.

The reformers view the Senate’s constipated legislative status quo as “unsustainable” and not in accord with the intention of the Framers. Even though it’s true that the filibuster was not an express element of the Framers’ vision for the Senate, the latter point is eminently debatable as the Federalist Papers give ample support for Madisonian republican restraint and fear of democratic majoritarianism. Many of the Framers were mindful of the decay of the Roman Republic, and one of their biggest fears was the rise of a dictatorship and despotism under the cover of a republican democracy.

In the Federalist Papers, Alexander Hamilton warned: “the vigor of government is essential to the security of liberty… that a dangerous ambition more often lurks behind the mask of zeal for rights of the people than under the appearance of zeal for firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying court to the people, commencing as demagogues and ending up tyrants.”

The principled tension between majoritarian democracy and republican prudence is an enduring theme of what historian Joseph J. Ellis has called “the American dialogue,” the ceaseless debate over democratic principles between past and present since the nation’s founding. This political and jurisprudential dialogue “between the Founders and us,” as Ellis puts it, features collisions of opposing constitutional principles and a working out of often imperfect compromises on everything from race and free speech to gun rights and due process. This dialogue has room for reasonable disagreement, and we need not try to definitively decide the “right” voting rule for Senate cloture here.

Many of the Framers were mindful of the decay of the Roman Republic, and one of their biggest fears was the rise of a dictatorship and despotism under the cover of a republican democracy.

But the cloture reformers’drive to eliminate the filibuster is highly relevant for our present purposes. We believe Merkley and his like-minded colleagues are correct that the political future of the filibuster is open to question and that reform of the cloture rule is feasible. Indeed, Senator Merkley led an effort in 2022 to change the filibuster rule specifically for a package of major election reforms that would have introduced beneficial clarifications and guardrails for the electoral process.

In the end, the cloture reform proposal failed by only two votes, with the defections of Senators Joe Manchin (D-WV) and Kristen Sinema (D-AZ) from the Democratic caucus. A smaller reform package, including the important Election Count Reform Act, ultimately passed. As North Carolina Republican Senator Thom Tillis remarked about Sinema, “she, in many respects, gets MVP for saving the filibuster.” The obdurate Manchin and Sinema are now voting with their feet by exiting the Senate after November, opening a possible path for filibuster reform.

But be careful what you wish for. George Bernard Shaw quipped that there are two tragedies in life — not getting one’s heart’s desire and getting it.

The arguments about the need for Senate filibuster reform may be profoundly right in principle but could be dangerously wrong in timing if an extremist tide is rising. The Senate does not exist in a vacuum. Paradoxically filibuster reform — a righteous pro-democracy cause though it is — could be worse than the disease it seeks to cure if Trump is inaugurated president on January 20.

As scholars Levitsky and Ziblatt write: “Designed in a pre-democratic era, the Constitution allows partisan minorities to routinely thwart majorities, and sometimes even govern them. Institutions that empower partisan minorities can become instruments of minority rule. And they are especially dangerous when they are in the hands of extremist and anti-democratic partisan minorities.” This is a sound argument in principle, but it could overlook the fact that an anti-majoritarian rule such as Rule 22 can help guard against an anti-democratic partisan minority – in this instance hiding within a prospective Republican Senate majority — from dominating that chamber’s legislative agenda. Indeed, contrary to the good intentions of the reformers, in the current MAGA-dominated GOP climate, filibuster reform could entrench extremist minority rule, not the opposite.

To repeat, the risk of simple majoritarian reform of Senate cloture voting is that the new seemingly pro-democracy rule could in practice hand over power to an extremist minoritarian majority. This is why we need customary checks and balances to work even within the same branch of government. Ironically, Senate gridlock thanks to the filibuster could be one of the last procedural barriers to an authoritarian paradigm shift. Frustrating legislative progress is worth it if it can frustrate authoritarian designs.

As Manchin observed to his hometown paper in 2021 opposing the Democratic-led For the People Act: “With that in mind, some Democrats have again proposed eliminating the Senate filibuster rule in order to pass the For the People Act with only Democratic support. They’ve attempted to demonize the filibuster and conveniently ignore how it has been critical to protecting the rights of Democrats in the past.” He went on to remind, “just four short years ago, in 2017 when Republicans held control of the White House and Congress, President Donald Trump was publicly urging Senate Republicans to eliminate the filibuster…” Presumably the thirty-three Democrats who addressed a letter to Senators Chuck Schumer and Mitch McConnell warning of the risks of eliminating the filibuster understood that the shoe could be on the other foot one day, with sweeping consequences.

The arguments about the need for Senate filibuster reform may be profoundly right in principle but could be dangerously wrong in timing if an extremist tide is rising. The Senate does not exist in a vacuum. Paradoxically filibuster reform — a righteous pro-democracy cause though it is — could be worse than the disease it seeks to cure if Trump is inaugurated president on January 20.

Democrats, particularly the more progressive wing, have been condemning defectors for opposing filibuster reform. Yet the obstinate unwillingness of moderates such as Manchin and Sinema and a handful of Republicans to embrace reform could prove to be prudential wisdom under our current circumstances, even if that was not their intention and they mostly liked the filibuster because of the power it gave each of them to block unwelcome legislation affecting their constituencies. Depending on what happens from now to January 20th, the manifestly anti-democratic sixty-vote cloture rule could turn out to be the last line of defense against tyranny of a new slim majority of Republicans — and a minority of national opinion — directed by an extremist White House under Trump.

This is a time for what moral philosophers call “situation ethics” — when practical consequences matter more than abstract or righteous principle. It’s better to be filibustered than railroaded by an extremist minoritarian faction.

Harry Reid’s crafty “nuclear option” precedent highlights the key fact that the rules of both houses of Congress are parliamentary, not legal, and therefore not appealable to the Federal courts unless they violate foundational constitutional principles. The House and Senate operate as sovereign political bodies regarding their own rules of procedure. Customary practice and political agreement govern their respective parliamentary procedures, but a partisan voting majority in either chamber can use power plays to amend rules and bend customs. Resorting to the “nuclear option” is a prime example of such an aggressive parliamentary maneuver that can lead to unintended consequences.

GOP Presidential nominee Donald Trump has said that starting January 20, 2025, he intends to be “dictator, but only for a day.” Whether his remark was a lapsus linguae, a dark joke, or a fateful promise is unclear. In any case, it should not be ignored.

Trump’s comment brings to mind the opening line of Orwell’s Nineteen Eighty-Four: “It was a bright cold day in April and the clocks were striking thirteen.” If Trump gets the chance, this abbreviated dictatorship could last longer than a day. And, as with the House, the Senate could play a pivotal role in expediting his authoritarian plans for a constitutional coup.

How might this unfold? Dictatorship for a day? Maybe not exactly, but imagine a cloture-empowered Senate helping to pass a quick-start omnibus legislative agenda: a MAGA-infused paradigm shift on the scale of FDR’s New Deal or LBJ’s Great Society packages at the service of Trump’s dark mission of gutting our country’s system of governance. Such a Senate could give Trump the opportunity to follow through on his original inaugural promise that “a new vision will govern our land” reversing what he called “the American carnage,” a characteristic and calculated use of fascistic imagery.

Trump has clearly understood the importance of eliminating the Senate filibuster for the purpose of implementing his nihilistic plan. In his first term Trump called on then Majority Leader Mitch McConnell to use the nuclear option not only to ram through Neil Gorsuch’s Supreme Court nomination in April 2017, but then he pushed McConnell to do away with the filibuster. At the time Trump received steady push back from moderate Republicans such as Senators Susan Collins (R-ME) and Lamar Alexander (R-TN) who warned that precisely because Republicans would not always be in the majority they had an abiding interest in maintaining the deterrent protection of Rule 22.

Those institutionalist concerns would not deter Trump if he were given a second chance. If he returns to power in January 2025, with compliant House and Senate majorities at his beck and call, elimination of the filibuster would be high on the agenda.

Indeed, the first order of business on January 3, 2025 in the new session of a MAGA-dominated Senate could be reform of Rule 22, reducing the cloture threshold to a simple majority (where the Vice President would break a tie).

Such a move could open a Pandora’s Box for quick paradigm-shifting legislation in key areas against the will of consistent national popular majorities, setting the stage for aggressive aggrandizement of presidential powers.

Post-filibuster elements of Trump’s tapestry of tyranny could include simple majority support in the Senate for legislation such as:

  • Repeal of the Affordable Care Act, which had barely survived repeal in 2017 thanks to the late Senator John McCain’s iconic thumbs-down vote.
  • Imposing a national ban on abortion and further abridgment of reproductive rights, shattering dreams of codifying Roe v Wade, which has been overturned by the new Trump-leaning majority on the Supreme Court.
  • Rollback of critical environmental protections under Trump’s know-nothing, climate change-denying rubric of “Drill, baby, drill.”
  • The long-sought presidential line-item veto. In 1998 the Supreme Court rejected by 6-3 as unconstitutional a previous attempt to grant the President coveted line-item budget veto power, but dissents by Justices Scalia and Breyer suggest a degree of shakiness to Justice Stevens’ majority opinion. The new majority on the Court could revisit the question.
  • Expansion of delegated emergency powers, for example in the context of the migration crisis where Trump has been talking about the need for concentration camps for undocumented migrants who are “poisoning the blood” of our country. Bipartisan voices have been sensibly calling for limitation of presidential emergency powers including the Insurrection Act. An unconstrained Senate could go in the opposite direction.
  • Government personnel overhauls through speedy Senate confirmation of political appointments and nominations based on loyalty tests to Trump rather than the Constitution. This would complement Trump’s plan to use “Schedule F” by executive order to transform the civil service into cadres of loyalists.

To be clear, the risk of such nightmare omnibus legislation, or even parts of it, would be scenario-driven and dependent on Trump’s degree of control across the three branches, which is far from a foregone conclusion but remains within the realm of possibility, and certainly merits prophylactic measures.

There is an old maxim about political power that first you must win the election to legally assume power, then you take power if you can by controlling the vast machinery of the administrative, legislative, and judicial branches — meaning take full control of the apparatus of the state. Few Presidents to date have had the will, experience, or the ready acolytes to take full control. But Trump now understands that the failings of his first Administration and his many legal woes stem from his failure to consolidate power and bend the state to his will. He and his top advisers now know how to do it.

This is a time for what moral philosophers call “situation ethics” — when practical consequences matter more than abstract or righteous principle. It’s better to be filibustered than railroaded by an extremist minoritarian faction.

A harbinger of our legislative future under another Trump presidency can be found in the Heritage Foundation’s “Mandate for Leadership — 2025 Transition Project” which lays out a detailed plan “to bring the Administrative state to heel.” As Anne Nelson explains in her piece for this publication titled “The Latest Plot Against America,” the Heritage co-authors see twentieth-century America as ruined by the Wilsonian order, creeping and pervasive Marxism of FDR, and the “great Awokening” of DEI policies after Obama.

The 800-page Heritage screed is like a bible for the radical extension of Reagan’s political revolution. This is not another aspirational thinktank publicity play, but rather the authoritative wish list of the organizational infrastructure and funding apparatus of the Trump movement. The MAGA manifesto should be required reading for anybody with doubts about Trump’s intentions. Its rhetorical style is a reactionary form of states’ rights liberation theology, both cleverly and clumsily cloaked in the rhetoric of returning power to “we the people” and to the sovereign states. It is a dark vision of a super-powerful presidency unencumbered by a supposedly entrenched bureaucracy, with neutered checks and balances.

The first instinct, a healthy one, might be to say, “you can’t be serious — America is better than this.” Indeed, sober commentators routinely dismiss Trump’s despotic-sounding comments and the plans of his Heritage acolytes as sophomoric and sloppy, not something to worry about. What’s more, the nation has endured difficult passages before, our institutions are robust, and the Republic survived the chaos of Trump’s first term — though not without some damage including a minoritarian right-wing takeover of the Supreme Court. All true.  We share the confidence in our country’s demonstrated and intrinsic resilience, and yet we see ominous signs in the aggressive rhetoric of Trump and his election-denying cohorts. Never before has a once and would-be president been the force of relentless political disruption or enjoyed such a cult-like following or articulated such a root-and-branch plan of government and governance overhaul.

A noteworthy aspect of plans for a “constitutional coup” is that such power plays seek the patina of constitutional legitimacy. Indeed, what is particularly insidious is that such a coup may look constitutional at least colorably, as lawyers would say. A constitutional coup would not be an overt overthrow of the United States government; instead, it would have the cover of a superficially lawful but profoundly anti-democratic capture of state power.

The malignant method of the constitutional coup plotters is to turn the letter of the founding charter against its spirit. As was the case with Weimar Germany in the early 1930s, the technique is to bend constitutional interpretations, in bad faith, while appealing to a higher justification such as “originalism,” a “freedom agenda,” a national emergency or some other putative force majeure.

In the American context, a constitutional coup may not be a rebellion or insurrection within the meaning of Section 3 of the 14th Amendment, the clause which has received so much recent attention when it was unsuccessfully invoked to disqualify Trump from the 2024 presidential ballot. An insider coup can take the slippery form of a series of partisan and procedural power plays to take over all three branches of government, with support from the state level.

What is to be done to mitigate these risks, particularly with respect to the Senate cloture rule? There is an urgent need for strategic, democracy-protecting cross-party coalitions in Congress. As with the ten House Republicans who voted for impeachment on January 13, 2021 or those Republicans who refused to follow the MAGA call not to certify the Biden election, courageous individual elected officers in Congress can make a critical difference.

Arguably, a handful of House Democrats should have crossed over to protect McCarthy as Speaker on October 3, 2023, instead of allowing a radical like Mike Johnson to take over. In the Senate the fate of the standing cloture rule could depend on a handful cross-over centrists or institutionalists such as Senators Lisa Murkowski and Susan Collins to block a nuclear option power play by a MAGA-controlled minoritarian majority. Mobilizing broad public opinion against cloture reform is important but the game will come down to individual players in the Senate.

The announced exit plan of long-serving GOP Senate Leader Mitch McConnell, whom Democrats have criticized for the sharply intensified use of Rule 22 to impede legislation starting in the Obama years, does not bode well for the few remaining moderates in the GOP. Indeed, McConnell’s departure eerily echoes the political surrender of flawed late Weimar leaders like President Paul von Hindenburg, who was unable to withstand the sustained and systematic onslaught of extremists in early 1930s Germany. Hindenburg’s exit opened the path for the German parliament’s March 23, 1933 passage of “The Law to Remedy the Distress of the People and the Reich,” also known as the Enabling Act. This was the Weimar variant of a constitutional coup which laid the formal legal foundation for the coming Nazi dictatorship.

We are not fatalist about the chances of the survival of democracy as the American Republic navigates the current highly conflictual, polarized waters. After all, democracy is all about allowing and managing political differences and conflicts. Democracy does not deny or avoid conflicts; it tries to absorb and civilize them. Its genius has been to provide durable, iterative mechanisms for peaceful conflict resolution through agonistic stakeholder debates, hard-fought compromises, and overarching respect for the rule of law. As the great American political philosopher John Dewey wrote, “the method of democracy is to bring conflicts out into the open where their special claims can be seen and appraised, where they can be discussed and judged.” The ingenuity and elasticity of the democratic experiment is always being tested. The long history of political dispensations since antiquity suggests that the main alternatives to democratic choice tend to involve dictatorship and violence.

Trump recently had a “there-will-be-blood” moment at an Ohio rally. He said, “Now, if I don’t get elected it’s going to be a blood bath for the whole — that’s going to be the least of it. It’s going to be a blood bath for the country.” His eager apologists dismissed this comment as strictly a reference to the auto industry and trade wars, but it sounded like dog-whistling for political violence. After Trump’s naked incitement of the January 6 events, we know too much not to be concerned. These comments are not Freudian slips, they are part of a pattern of deliberate semaphore signals stoking extremist imaginations.

Make no mistake. The Trump movement seeks to obtain power whether by fair or by foul means. The less it looks as though fair can work, the more likely the resort to foul. This is not just about policy disagreements — part of the long-running the American dialogue — but about a threat to the Republic’s operating system which has accounted for our nation’s vitality and success over many decades.

Many voters in the US and other Western democracies seem to be seduced or at least intrigued by what might be called an authoritarian temptation and to ignore the risks of dictatorship. Perhaps they doubt how much democracy has accounted for our national success and prosperity or can do so in the future; perhaps they are open to experimentation with less rule of law, fewer checks and balances, and more muscular and effective leadership to solve the nation’s problems. As Martin Wolf of The Financial Times recently observed, “it is dangerous to take a ride on fascism.” Curiosity killed the cat.

Even if these despotism-curious voters are a minority, as they still appear to be, their voice should not be unduly empowered by weakening checks and balances through well-intentioned but risky measures such as Senate cloture reform. The cursed filibuster might be the final guardrail of the Republic before coast to coast the clocks start striking Orwell’s 13th hour.

 

Mark Medish, a lawyer, served as Special Assistant to the President and Senior Director of the National Security Council as well as Deputy Assistant Secretary of the U.S. Treasury in the Clinton Administration. Joel McCleary served as Deputy Assistant to the President in the Carter Administration.

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