Filibuster Reform Is No Longer Enough

Bringing the broad left around to the importance of abolishing the filibuster has been a decades-long project.

Happily, we’ve reached the cusp of success. The bad news is we’re already too late—unless we expand our horizons.

The time to act, the last moment when filibuster abolition might have constituted a sufficient procedural reform, was 2021. In 2021, two Democrats out of 50 stood in the way of filibuster reforms that would’ve allowed the Senate to pass important democracy protections. These Democrats, both of whom retired in short order, may have served as heat shields for a handful of weaker-willed skeptics. But it was clear that reformers had won the argument within the party. Abolition was only a matter of time.

Today, it seems quite likely that the time will come in January 2029. Donald Trump is incompetent and destructive; fixing the country will require immense effort. Democrats will be in no mood to allow Republicans to sabotage the recovery.

But now filibuster reform won’t be enough to stop them. It might actually, on its own, increase Republican power, without any predictable, concomitant benefit for Democrats. That’s not to say filibuster abolition has become a bad idea. But it is no longer commensurate with establishing something resembling a fair two-party democracy.

If Democrats aren’t willing to go further than filibuster reform, it’s no longer clear that they should bother with any reform at all.

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This essay is thus an appeal to filibuster abolitionists—whether they work in politics, or on the sidelines with me—to stop treating filibuster abolition as a goal unto itself. It must specifically be paired with court expansion (along ideally with a broader suite of reforms) or else Republicans in Congress will simply cede more obstructive power to partisan judges. The Senate will function better, but it will become a conduit for bills to nowhere, at least when Democrats are in power.

The good news is most democracy reformers outside of politics are already with me on this. The bad news is most Democratic elected officials, the ones with the power to update our democratic infrastructure, are not.

Almost two decades ago, Republicans transformed the filibuster into the principal obstacle to democratic governance in America. Eliminate it and we’d unlock a door to a brighter future—or so we imagined.

Unfortunately, it took us too long to gain adequate buy-in among elected Democrats—which in and of itself is fairly insane. The filibuster remains a major impediment to Democratic priorities, and Democratic priorities alone. Most Democrats at long last support abolishing the filibuster, but it took the hobbling of the Obama agenda, the theft of the Supreme Court, and relegation to second-class status in a two-party democracy to bring them around. Absent those developments, the left would still be paralyzed by risk aversion.

When liberal gadflies first started agitating for filibuster reform a bit over 20 years ago, we faced unsurprising skepticism. The precipitating incident was a fight over Republican judicial nominees. George W. Bush had nominated a few extremists to appellate judgeships, Democrats were using Senate filibuster rules to block them, and Republicans were threatening to invoke the so-called “nuclear option” to get them confirmed.

The Senate’s standing rules are very hard to change, but its day-to-day functioning turns on precedent, which can be set by simple majority. So for instance, the standing rules hold that “three-fifths of the Senators duly chosen and sworn” can end debate on any “measure, motion” or other matter pending before the Senate. But if 50+1 senators decide that debate on subcategories of Senate business (like legislation, or nominations) can be brought to a close by simple majority, they can create that exception pretty much whenever they want.

Voila, no more filibuster. That’s the nuclear option.

Back in 2005, liberals overwhelmingly supported Democrats in their effort to block these judicial nominees, and derided the GOP’s nuclear option threat as a power grab. A small minority of us, thinking more than one step ahead, recognized the error. Sure, these would be terrible judges, but Republican judges are terrible in general, and if Democrats wanted a fair shot at governing post-Bush, they shouldn’t line up behind the idea that 40 Republicans senators should be allowed to passively block them. Plus, it’s a democracy: majorities should rule, then voters should decide whether they like the outcomes. So let the Republicans go nuclear!

That standoff eventually ended without a change to the filibuster rules. And most progressives felt they’d dodged a bullet. If Republicans eventually did away with the filibuster, they fretted, Democrats wouldn’t be able to block Republican bills to crush union organizing. Or restrict abortion nationally. Or suppress Democratic voters. Or deregulate industry. Or…

This became consensus wisdom that locked most Senate Democrats into support for the filibuster for the next 15 years. Opposition to filibuster reform boiled down in essence to “careful what you wish for”—but that, ironically, was when the monkey’s paw curled. Mitch McConnell realized he could use the filibuster as a tool of total obstruction when Republicans were in the minority. Then, in the majority, he and his members could use the budget process, where filibuster rules don’t apply, to pass their tax cuts. And they could rely on partisan judges to do the rest of their governing for them from the bench. Democrats saw all kinds of priorities scuttled by a legislative supermajority “requirement.” Meanwhile, Republicans imposed the parts of their agenda they value most. They cut rich people’s taxes while the courts helped them crush unions, restrict abortion nationally, suppress Democratic votes, and deregulate industry. Ah well!