The Uneasy and Futile Case for Filibuster Reform

 by Michael C. Dorf

In a Bloomberg Law podcast that first aired earlier this week, I talked with host June Grasso about the most recently concluded SCOTUS term, next term, and some larger questions. At the rough midpoint of the segment, as we pivoted from last term to next term, she asked me whether, in light of my bleak assessment of the Court's recent decisions and the trend line, I support increasing the size of the Court. I gave a somewhat qualified answer: doing so wouldn't decrease polarization (the subject we had been discussing immediately before the question) but it was worth a try in light of the threats to our democracy. I explained, however, that I think Court expansion is a non-starter given that it cannot be done through reconciliation and thus requires either 60 votes in the Senate or a change in the cloture/filibuster rule, neither of which is remotely likely.

Meanwhile, in a guest post here on the blog on Wednesday, Professor Ron Krotoszynski proposed that Congress should use the reconciliation procedure (which requires only a bare majority in the Senate) to enact a law conditioning federal Medicaid, Medicare, and other related funds on states providing access to therapeutic abortions. Prof Krotoszynski acknowledged that it would be better to guarantee general access to abortion but noted that the 60 votes or filibuster reform needed to do so are not forthcoming. Using the UK as a model, he also explained that with a sufficiently capacious definition of medical need (one that includes mental health broadly defined), protection for therapeutic abortion could be nearly as encompassing as express protection for elective abortion.

Here I want to ask whether we are giving up too quickly on more sweeping legislation accomplished via filibuster reform. I'll focus mostly on my own position, which to a casual podcast listener could come across as defeatist, whereas Prof Krotoszynski at least offered a concrete action proposal.

Filibuster reform would need to be accomplished via the so-called nuclear option that has already been deployed, first by Democrats to eliminate the filibuster for lower court and executive branch appointees, and then by Republicans to eliminate it for Supreme Court Justices. If Senators Manchin and Sinema could be brought around to support the nuclear option (an extremely doubtful "if", about which I'll say more below), would it make sense for the Democrats to exercise the option?

From a constitutional or institutional perspective, I'd like to say the answer is yes. The cloture rule currently acts as a supermajority requirement, even though the Constitution's default rule is that a majority can act, absent an express supermajority requirement (such as for overriding vetoes, approving treaties, and proposing constitutional amendments). And in principle, it's hard to argue with majority rule.

But even put in those nonpartisan terms, the case for filibuster reform is not quite a slam dunk. The Senate itself is highly non-majoritarian, given the equal representation of large and small states. It is possible for an undemocratic rule (like the 60-votes-for-cloture rule) to make the overall system more democratic by under-cutting another undemocratic rule (like states' equal suffrage in the Senate). At the moment, filibuster reform would make the Senate more small-d democratic. But if and when Republicans gain control of the Senate, it will be likely that their Senate majority will reflect a minority of voters, given the over-representation of rural states and the Republican leanings of rural voters. A filibuster by a minority of Democratic Senators to block action by a Republican Senate majority representing a minority of the country creates an outcome that is on-net small-d democratic.

That's the analysis from a constitutional/democratic perspective. One reaches the same conclusion when taking a more partisan view. Democrats should favor filibuster reform if they think that what they can get now is worth the risk of undercutting their ability to block actions of a future Republican-controlled Senate.

Abortion provides a useful thought experiment. Notwithstanding Mitch McConnell's willingness to play (crooked) hardball in all sorts of ways, he seems genuinely committed to the filibuster. If the Democrats don't go nuclear while they hold a Senate majority, I suspect that McConnell won't do so when his party next holds the White House, the House, and the Senate. To be sure, faced with sufficient political pressure from his party's base, I could imagine McConnell eventually caving and going nuclear to enact a nationwide abortion ban. I just don't think it's his preferred course of action.

However, if the Democrats were to abolish the filibuster now and enact a law more or less codifying Roe v. Wade, I am quiet confident that upon retaking control of the presidency and Congress, McConnell (or his successor) would not hesitate to repay the favor by enacting legislation that repeals the right-to-choose legislation and replaces it with a nationwide abortion ban. If that's right, then the possibility of filibuster reform that leads to codifying Roe could be a trap. It would protect abortion rights only until Republicans control Congress and the presidency--at which point that very mechanism would boomerang and become the means for the adoption of a national abortion ban.

Yet filibuster reform would not be a limited ticket good only for enacting legislation on abortion. With a fifty-vote threshold, Congress could enact meaningful election law and voting rights legislation that would reduce the likelihood of Republicans regaining control of the federal government--not in an unfair way, mind you, but by restricting the impact of the anti-democratic tools like voter suppression and gerrymandering that Republicans currently exploit. Even competing on a level playing field, Republicans could eventually retake Congress and then use the lowered threshold for cloture to enact legislation (on abortion and numerous other matters) that would elude them without filibuster reform. So the boomerang potential is there no matter what. But on balance, given the threat to democracy, I think that exercising the nuclear option now would be a risk worth taking.

And that brings us back to Senators Sinema and Manchin. I should say that I don't understand their attachment to the filibuster. I get that West Virginia is now a red state, so that on substantive issues (like abortion), Manchin will be to the right of other Democrats. But I don't understand his (or Sinema's) attachment to the filibuster. Can it really be that there are substantial numbers of voters in West Virginia or Arizona who care a whole lot about (or even really understand) the filibuster? Meanwhile, in a 50-50 Senate, Manchin and Sinema have enormous leverage over any Democratic legislative proposal, even if only a bare majority is needed for enactment.

Because I don't understand the source of Senators Manchin's and Sinema's opposition to filibuster reform, I hold out hope that it could be overcome through some combination of carrots and sticks. Or I would hold out hope if not for the maddening experience of Manchin's constantly teasing and then moving the goal posts on Build Back Better last year and then for the very scaled-back version of that bill that Manchin killed just yesterday. To be sure, Build Back Better or the mini-version would have been passed by reconciliation and thus wouldn't have required filibuster reform, but Manchin's insusceptibility to cajoling leads me to think that LBJ himself couldn't move him--so it's no surprise that Biden hasn't move him either. Sinema might be more movable. Arizona is a less hostile environment for Democrats than West Virginia. But given that both Sinema and Manchin are needed for filibuster reform--and for legislation needing a simple majority--Manchin is a sufficient obstacle.

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Many years ago, a constitutional law professor friend of mine said to me something like this: "Do you ever think how strange it is that that 80% of our job is to read the minds of Sandra Day O'Connor and Anthony Kennedy?" Just so. What I didn't realize was how much worse it would get. We now must read the minds of John Roberts and Brett Kavanaugh or occasionally Neil Gorsuch. Meanwhile, I imagine that for Joe Biden, Nancy Pelosi, Chuck Schumer, and the rest of the Democratic leadership, the question is not "what useful legislation can we pass?" but "what's Joe Manchin thinking?".