Would Nuking the Filibuster Really Help Democrats?
Scott Applewhite)
Would Nuking the Filibuster Really Help Democrats?
Scott Applewhite)
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Two weeks ago, Democratic Sen. Joe Manchin announced that he would oppose H.R. 1, his party’s election reform package, and further reiterated his support for retaining the filibuster. This prompted howls of outrage from the left and renewed calls to pressure Manchin into “nuking” the filibuster. Manchin has walked back his comments somewhat, and has expressed interest in a more bipartisan election reform bill and weakening the filibuster.

Regardless of where he ultimately comes down on this, the hunt to repeal the filibuster is misplaced, especially from the Democrats’ point of view. While repealing the filibuster may help them in the immediate moment (and the long term is absolutely unpredictable) in the short-to-medium term retaining the filibuster probably helps Democrats more than Republicans.

First, Republican trifectas—control of both chambers of Congress and the White House—are more probable than Democratic trifectas, suggesting the GOP will be able to use its future majorities to push through favored legislation more frequently than will Democrats, absent a filibuster. Much ink has been spilt on the Republican geographic advantage in the House, which exists even without intentional gerrymandering. The Senate and Electoral College have likewise presented Republicans with a leg up on Democrats over the past 30 years. Even before 1992, when Democrats likely had an edge, the true edge went to conservatives, who could bottle up liberal legislation except in extreme cases.

For some quick back-of-the-envelope math, in the past 30 years Republicans have won the presidency in three of eight elections. They’ve won the House in two-thirds of the elections, and 60% of Senate elections. If this is the baseline expectation for GOP chances of holding those chambers, it translates to Republicans having the trifecta about 15% of the time. Democrats would get the trifecta about 8% of the time.

The math likely isn’t that pure, since losing the presidency probably reduces your chances of winning, say, the Senate (i.e., they aren’t independent of each other), but these also translate roughly to the percentage of the time Republicans have actually held the trifecta versus Democrats during these years. If anything, this analysis probably understates GOP chances with the presidency (over time, the presidency has pretty consistently been a 50-50 proposition), suggesting an even greater discrepancy.

There are a multitude of responses to this, none of which are terribly convincing, and some of which are contradictory. Perhaps the most compelling response is that this Republican advantage is precisely why Democrats need to abolish the filibuster: By getting rid of it, they can now pass things like the redistricting criteria in H.R. 1, and add the District of Columbia and Puerto Rico as states.

But the effect of these sorts of measures are overstated (and Manchin opposes D.C. statehood). Adding D.C. and Puerto Rico as states would increase the baseline number of Democratic senators (although Puerto Rico is more of a mixed bag than many expect), but it would also raise the threshold needed for Senate control. In other words, you’d theoretically get 54 Democratic senators, but 52 would be needed for control (assuming a party also controlled the vice presidency).

This wouldn’t translate to a significant change in the partisan lean of the chamber. Today, to control the Senate, Democrats have to win at least one seat in one of the 25 most-Republican states. These states all have Cook Partisan Voting Index scores of R+3 or more. If you added two more Democratic states, Democratic would have to win at least one Senate seat in one of the 26 most-Republican states. These states also all have Cook PVI’s of R+3 or more. As a “bonus,” adding D.C. and Puerto Rico would worsen the small-state bias in the Senate, since both have smaller-than-average populations.

In the House, let’s assume that the various “partisan fairness” metrics in H.R. 1 bring the House majority roughly in line with the popular vote. This still translates to a Republican advantage over the course of the past decade. Republicans lost the popular vote but held the House just once in the past 30 years (2012); 1996 is disputed and depends on how you account for unopposed seats and runoffs.

If we call 1996 a draw, you end up with Republicans winning the House 57% of the time over the course of the past three decades with “partisan fairness” metrics in place. Even assuming that Republicans really would be expected to win the presidency only 37% of the time, that still works out to them having a trifecta slightly more frequently than Democrats.

This brings us to the second argument, which is that Republican legislative output would not change much with or without the filibuster, because Republicans supposedly only care about tax cuts and judges. Since they can pass tax cuts with simple majorities through reconciliation (with some important limits), and they can approve judges with just a Senate majority (since Democrats removed the filibuster for judges in late 2013), this becomes a non-issue.

This argument is frustrating. There’s a bit of chicken/egg confusion sowed in here: Republicans pushed through record numbers of judges and tax cuts (and massive COVID relief bills) because most other GOP agenda items were unlikely to win the endorsement of the seven-to-nine Democrats necessary to break a filibuster during the Trump presidency.

More importantly, there’s a tension between this argument and the general stance of Democrats toward the GOP, which is a state of perpetual meltdown over Republican ideas. One might reasonably ask why anyone would want to remove a check on such a party, but regardless, it suggests Republicans have some legislative goals they would like to achieve beyond judges and tax cuts.

More to the point, we could also examine states where Republicans have operated without filibusters in place.  They have legislated aggressively, frequently accomplishing things that Democrats very much do not like. It’s unclear why a federal government controlled by Republicans would be much different than, say, Wisconsin when it was controlled by Republicans, or Texas today.

The truth is that there are things that Republicans would very much like to accomplish absent the filibuster; many of these things would not be so unpopular as to be automatic majority-killers. A reasonably-sized Republican majority would probably pass a waiting period for abortion on the national level, as well as a parental consent law. They may be able to push through a ban on abortions after 20 weeks. We would probably get a national photo identification law, and perhaps some regulation/rolling back of same day registration, absentee balloting, and early voting.

The real dangers for Democrats, though, are a number of things Republicans could pass that would damage internal Democratic Party messaging and fundraising. This is also an asymmetric risk, as the organizations that support the Republican Party tend to be more ideological, and harder to constrain given the First Amendment.

Consider labor unions. In 2020 eight PACs donated more than $2.5 million to candidates and gave 60% of those dollars to Democrats; they all represented labor interests. A Republican trifecta could pass a national right-to-work law, neutering an important conduit for information between Democrats and their working-class supporters in the North and Mountain West. The TEAMS Act (H.R. 1 in an earlier Republican-controlled Congress) could reorient the role of labor unions substantially. Limitations on public sector unionization under the NLRB would likewise damage Democrats. Tort reform could damage trial lawyers, an important Democratic constituency, especially at the state level. Limitations or “revisions” to the various environmental statutes would limit Democratic presidents’ ability to act expansively. There are plenty of other things that could be done, but the idea is clear.

There are two rejoinders. The first claim is that even assuming Republicans do, in fact, want to do such things, their failure to repeal Obamacare during Trump’s term suggests that they are too divided to accomplish this.

This is a retelling of history. Republican efforts to repeal Obamacare were stymied by the filibuster. Republicans could move funds around in reconciliation, but any attempt to make statutory changes or replace Obamacare with something more palatable to moderates needed to pass the 60-vote threshold. This simply was not happening.

Moreover, the Republican failure on “skinny repeal” was more complicated than simply not being able to agree on anything. As Tim Alberta explained in “American Carnage,” his history of the Republican Party during the past decade, John McCain had intimated to Republicans that he would vote for the skinny-repeal bill the night before his famous “thumbs down” on the floor. His vote change caught Mitch McConnell flat-footed; since McCain voted last, there was little McConnell could do (such as trying to convince Susan Collins to vote “yea”).

Finally, this overlooks the fact that Obamacare did not have to be repealed, or substantially rolled back, in one fell swoop. The reality of the filibuster makes us think in terms of big bills, but appropriations riders were once a killer instrument for quietly pushing through legislation. Even if Obamacare repeal was not achievable in one fell swoop, it could have died a death of a thousand paper cuts through the appropriations process (this is also true of many of the items described above).

The final response is that even if all of the above is true, elections should have consequences. If the Republican Party wins the trifecta, it should be able to push through its agenda, and if it wins the trifecta more often than the Democrats, it should be able to legislate more frequently than the Democrats. Elections, as they say, have consequences.

This is a very principled position, and I suspect some small segment of those agitating for repealing the filibuster hold it sincerely. One good litmus test here is whether a person was making similar arguments with similar intensity during the Trump presidency; once suspects, however, that it is not accidental that this is the case for vanishingly few of the academics who signed on to a May 2021 open letter to members of the Senate. Alternatively, one could argue for abolishing the filibuster, but doing so at some point in the future, such that it would be unclear who would benefit.

This illustrates, though, one of the better arguments against repealing the parliamentary tool. Unlike most filibuster-less countries in Europe, we are a giant, diverse, transcontinental empire. Indeed, the question of holding together such an unwieldy assortment of states was one of the questions that bedeviled the Founders at the constitutional convention.

Part of what has made America work – indeed, it is part of our culture – is a small-“c” conservatism; it shows up in the midterm backlashes that happen any time a major party rocks the boat too much, even if economic numbers don’t suggest the party in power should be punished as thoroughly as it was. Years like 1890, 1966, 2006, 2010 and 2018 illustrate what can happen to a party when it oversteps.

I’m not sure we can handle the back-and-forth that would occur as parties trade trifectas every six-to-eight years, as we go from a country with 20 days of early voting/same day registration/no photographic identification laws to one with no days of early voting/a national 30-day registration cutoff/strict photographic identification laws — all depending on the party in power. This is to say nothing of gyrating abortion laws, environmental statutes, and so forth. In extreme circumstances, we could see fluctuating judiciaries.

There really is a benefit to the stability brought about by the filibuster, even if it often prevents enacting big things that one party or the other would prefer. Even if one takes the “democracy means you get to do what you want” to an extreme, it isn’t really clear that there would be mandates for these individual agenda items when a party gets 50% + 1.  This threshold puts individual legislators in power, but given heterodox viewpoints of constituents and the reality that many (most) swing voters are simply “voting their pocketbooks,” it would be a mistake to read this as 50% + 1 for the institution of a party’s sweeping vision.

It’s no clear rejoinder to say “this is how other countries do it,” because most other countries have parliamentary democracies, where parties often fail to win outright majorities and are instead required to form coalitions with smaller parties that may or may not support the main party’s broader agenda. This is a check that would be missing in our polarized, two-party nation.

Regardless, if one holds the principled position that the filibuster should be eliminated, and held it even during Trump’s presidency, then yes, Manchin deserves the condemnation he is receiving. If, however, one supports eliminating the filibuster mostly because one favors progressive priorities, Manchin (and Arizona’s Kyrsten Sinema) are probably doing you a favor.

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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