‘All or nothing’ won’t bolster American democracy: Reform the filibuster and Electoral Count Act

The worst part about present-day Washington isn’t the partisan polarization; it’s the public posturing.

It used to be the case that if your party controlled Congress and the White House and you desired legislative action on a policy issue, your best strategy was to build a coalition of ardent supporters, devise a catchy message that corners your opponents (those explaining are losing), and persuade the president to mount a rhetorical campaign on your behalf, or “go public.” Optimistic and democratic, the rationale was simple: High visibility and public pressure would help coalesce a majority in favor of action.

But in today’s Washington, where media attention, social media celebrity and electoral incentives fuel obstinacy and conflict, rather than bargaining and compromise, this strategy is a recipe for failure. The more public a debate becomes, the more polarized the opinions of elected officials seem to grow. Then, after a few weeks of white-hot debate, rife with name-calling and allegations of corrupt or evil motives, nothing happens. No action. Policy purity and partisan loyalty become the enemy of the public good.

When it comes to the critical issue of bolstering American democracy, Democrats can’t allow nothing to happen. Demonizing their opponents and offering up high-minded rhetoric won’t be enough. They have to move forward with legislation that can pass, rather than hoping their preferred policies magically will.

As veteran journalist David Ignatius explained, Republican obstructionism is real, but it’s also the case that President Biden “has failed to craft versions of his social spending package and voting rights legislation that he could pass with fragile majorities.”

In practical terms, that means national Democrats should work with Republican Sen. Susan Collins of Maine and the few other Republicans in the Senate interested in reforming the Electoral Count Act to secure the congressional process for counting electoral votes.

Then Democrats should approach Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona and Minority Leader Mitch McConnell (R-Ky.) about reforming the filibuster, instead of using “a power grab” to end it. The reason is evident to anyone who knows American history. In a system of separated powers and competitive political parties where majority control changes regularly, power grabs usually backfire (e.g., Democratic Majority Leader Harry Reid’s decision to go “nuclear” on federal judgeships created the opportunity for then-Majority Leader McConnell to expand the rule to Supreme Court nominations). Bipartisan compromises usually endure.

Case in point: The current 60-vote threshold to invoke cloture (end a filibuster and move to voting) that structures most legislative debate in the Senate came about in 1975 as a bipartisan compromise. The reformers’ attempt at the beginning of the legislative session that year had failed after a mistake was made in parliamentary procedure. As was noted at the time, “reformers have tried at the beginning of every Congress but one to alter the present filibuster rule since it was adopted in 1959.” When they did prevail, 56 senators voted in favor of the new rule but, crucially, 73 voted to limit debate, far surpassing the required two-thirds threshold. Then Sen. Robert Byrd (D-W.Va.) remarked: “The die is cast. The Senate has made up its mind.”

Although both parties have sought to move around this reformed rule by going “nuclear” (history and contemporary context) and broadly using the budget reconciliation process, continuing this tit-for-tat legislative “carve-out” strategy of “reform by ruling” will, as Sinema argued, likely “worsen the underlying disease of division infecting our country.”

And since the votes aren’t there to end the filibuster entirely, Democrats should consider crafting reform with McConnell that would garner Republican support to change the rule. Such reform might be one that alters the threshold for cloture from three-fifths of Senate membership (60 votes, if there are no vacancies) to six-elevenths (55 votes, if there are no vacancies). Yes, six-elevenths. That sounds like a cumbersome number and it may not make much theoretical sense, but it makes a great deal of practical sense.  

Since 2000, there have been only two Congresses (109th and 111th) where majority control rested on one of the parties holding 55 or more Senate seats. Consequently, in most instances, the minority party would continue to wield power and have an opportunity to shape public debate, but their power to obstruct would be lessened. Majority parties may be incentivized to seek bipartisanship legislation more often because the bar to move legislation to the floor would be lower. Further, individual senators who represent the few “purple” states may be more inclined to side with an opposition party majority if they thought passing legislation was actually possible. More specifically, McConnell, with an eye toward the 2022 elections and his possible return to majority leader, may favor the change because it would offer him a win on the principle (retaining the filibuster) and a win on the tactical (Republicans would need fewer votes to pass legislation next session). Such a reform also would allow Sinema and Manchin to win on principle and may incentivize them to reengage in bipartisan efforts to pass other voting rights policies, including the John Lewis Voting Advancement Act.

Although many have argued that reforming the cloture rule to ensure senators engage in a “talking filibuster” is preferable, it seems evident that senators don’t want to have to be present on the floor to register their objections. As objectionable as that may be to scholars of democracy and reform activists, most senators have pressed schedules and have become accustomed to the convenience the current rule affords.

Said another way, for reform to garner widespread support, it must be not only better than what presently exists, but must  not take away any of the benefits attendant with the status quo. That’s why changing the three-fifths threshold to six-elevenths, as inelegant as that number is, may well garner more support across the chamber than reinstituting a “talking filibuster.”  

No one likes bipartisan compromises, but when one has narrow majorities, there is no other legitimate way to govern. Posturing is not policymaking and President Biden will not garner higher approval ratings with a base-only messaging strategy. He was elected to make Washington work. Making the Senate operable again would go a long way toward making Washington work.

Lara M. Brown is director and professor of the Graduate School of Political Management at George Washington University and the author of “Amateur Hour: Presidential Character and the Question of Leadership.” Follow her on Twitter @LaraMBrownPhD.