The Filibuster: An Asymmetrical Tool

By: Paul-Winston Cange

March 2, 2021

The modern Democratic and Republican parties exist for fundamentally different purposes. The Republican Party is not a governing party; rather it is solely interested in cutting taxes and, increasingly, setting up barriers for people to vote. The Democratic Party exists to wield the tools of government in service of the disenfranchised and marginalized. At its core, this is the distinction between the two parties. This is clearly a simplification, but it serves the larger point. Democrats are elected on the promise to enact significant policy changes. For the past several elections, the Democratic Party has promised changes to healthcare, cost of education, an increase in the minimum wage. This is why the filibuster is so disproportionately harmful to Democrats, and why they should be comfortable getting rid of it. In order to enact their agenda, they need to legislate effectively and significantly. The Republican Party does not need to legislate at all. The Republican Party promises to pull back the reach of government. Democratic Party voters need the government to act, while Republican voters just want it to stay away.

Appreciating this difference is vital to any analysis of the current American political condition. The filibuster only allows Republicans to either stop Democrats from governing or dictate the bounds in which they can govern, even when they represent large majorities. It is important to remember the last time that the Democratic Party had a united government, after the 2008 election. Democrats had 59 seats in the Senate, with an opportunity for 60 seats, and a large House majority. The country was in a dire economic crisis, the worst since the Great Depression. At the time of President Obama’s inauguration, the country was already losing 800,000 jobs per month. Christy Romer, one of the President’s top economists, argued that the economic damage was so devastating that a stimulus bill would have to be well over 1 trillion dollars to repair the damage.

The Democratic Party was put in power to govern its way out of a crisis created by an irresponsible Republican administration. The Republican Party understood that competent and effective governance was the only way to repair the damage done to the nation. It also understood the political benefits that the Democratic Party would reap if the situation was repaired. Minority Leader Mitch McConnell declared that the strategy of the Republicans would be to obstruct President Obama at every turn, regardless of the damage done to the nation’s flailing economy. On the night of the President’s inauguration, McConnell stated that their only goal would be to make President Obama a one-term president. They utilized the threat of the filibuster to remove the public option from any healthcare legislation, to scare Democrats into passing a stimulus they knew was too small, and then to hamper any legislation to revive the economy when it became clear that our recovery was anemic. Moreover, they continually feigned attempts at bipartisanship, consistently moving the ball and deepening the crisis of governance in the nation. The result of the Democrats’ attempts at bipartisanship was a historic wipeout in the 2010 midterms and effective Republican veto power over the mechanisms of government.

The Democratic Party is now governing from a much weaker position than in 2009. It has 50 senators instead of 59, controlling the Senate only by virtue of Vice President Kamala Harris’ tiebreaking vote. It has a much smaller House majority as well, and both majorities are in danger of being lost in 2022. Conventional wisdom indicates that the President’s party is likely to lose seats in a midterm election. The loss of even a single seat would mean that the Democratic Party would lose control of the Senate. However, more than any other time in recent history, the American people voted for Democrats to pass significant legislation. The coronavirus crisis laid bare the devastating effects of economic inequality in this country. The coronavirus recession is leading to another K-shaped recovery, a recovery in which those with money get richer and those without become poorer. This would be a repetition of the recovery of 2010 and would only deepen inequality. Another recovery of this nature would only deepen disillusion with government. Power will increasingly become concentrated at the very top of the financial sector, further deteriorating the agency of everyday Americans. The Republican Party is already saying that more stimulus is unnecessary, a direct repeat of their mantra in 2009.

It is true that the coronavirus recovery bill can be passed through reconciliation. Reconciliation is a congressional process that allows for certain legislation that affects the budget to evade the filibuster—a simple 51 vote majority is enough. Reconciliation happens pursuant to a budget resolution which directs specific committees to alter legislation to budgetary targets. However, this only applies to fiscal legislation. It would not apply to legislation needed to more equitably balance the structures of our democracy. Democrats in the Senate already represent 41 million more Americans than Republicans do. This is only intensified by the fact that Washington D.C. and Puerto Rico are not states and therefore have no Senate representation.

Further, Democrats also need to pass a new Voting Rights Act. The Voting Rights Act was gutted by the Shelby County v. Holder decision.1Shelby Cty. v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013). Since then, Republican state legislatures have launched an assault on the right to vote. They have instituted counterintuitive voter ID laws, arbitrarily wiped voters from the rolls, and shut down polling locations at random; they have engaged in any activity that would disenfranchise potential Democratic voters, usually Black ones, from voting. Without the federal government protection afforded in a voting rights act, those who have been disenfranchised have no recourse. This is not a sustainable state of affairs in a democracy. The same can be said for criminal justice reform. In order to have unity, true racial equity must be fought for in the United States Congress. It cannot be dealt with unless the government intervenes. The filibuster only ensures that it will not be dealt with.

Some institutionalists will argue that Democrats will regret removing the filibuster when they are in the minority. The argument is that the Senate is structurally anti-democratic and benefits Republicans, since every state gets two senators. Institutionalists argue that Republicans regaining control of the Senate is inevitable. In this scenario they would have no filibuster to contend with and have free rein to enact an ambitious conservative agenda. This argument misses two key points. First, the Republican Party has no grand project other than cutting taxes, which they can and have done through reconciliation. When they go beyond that, the inadequacy of their own ideas, and disperse nature of their constituency ensures that they fail on their own. A prime example was when they attempted to repeal the Affordable Care Act through reconciliation and were unable to secure 51 votes because they had no plan to replace such a large and economically important piece of legislation. Secondly, removing the filibuster is the way for Democrats to avoid being in the minority in 2022. The core argument is inescapable: the Republican Party benefits from inaction and Democrats lose. That is the asymmetrical benefit of the filibuster. Eighty-one million people voted for President Biden and Democrats won seats in Georgia and Arizona, two states that had gone a generation without electing Democrats to a statewide seat. They won by organizing and turning out new voters all across the country, voters who voted based on the promise that Democrats would fix the crises facing the country. The only way for the Democratic Party to break our current political stalemate is to govern effectively, swiftly, and significantly. It must act to materially change conditions for its voters. Democratic voters rely on the party to fulfill the significant promises it makes to get elected. The last era of Democratic government engendered disillusionment because of the paucity of its response in contrast to the size of our crises. It led to consistent congressional majorities for Republicans and the Presidency of Donald Trump.

The Republican Party has no plan or desire to actually govern. It is not interested in the project of making America more just and equal, such an orientation does not require governance, only its inhibition. The Democratic Party is the only real governing party in the country. Its political power is dependent on its ability to deliver material changes to its voter base. From dealing with the coronavirus to restoring and fully protecting the right to vote, the choice is up to the Democratic Party. It needs to act like it.

Paul-Winston Cange, J.D. Class of 2021, N.Y.U. School of Law

Suggested Citation: Paul-Winston Cange, The Filibuster: An Asymmetrical Tool, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021)

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    Shelby Cty. v. Holder, 570 U.S. 529, 133 S. Ct. 2612 (2013).