Before I get too deep into this, I want to give a small disclaimer. I’m gonna be writing a lot about specific policies proposed by Democrats in this letter. I am using them as examples to illustrate a broader point. This shouldn’t be understood as an endorsement of any policies—something I would only do after thoroughly explaining the policy itself. Today, I’m gonna be explaining process and perverse incentives. If you want a policy analysis of anything in particular, let me know.
Let’s get started.
President Biden’s ambitious early agenda comes with a price tag of $4 trillion. Yes, trillion.
On top of the soon to pass $1.9 trillion Covid stimulus package, Biden would also like to roll out a roughly $2 trillion infrastructure plan. No matter how we quibble with the necessity or the wisdom of shovelling out such an astronomical amount of money there is an important discussion I want to start about how this amount of money might get on the shovel in the first place.
The short of the story is, because of the filibuster, neither of these plans are likely to pass without going through what is called budget reconciliation. Essentially, reconciliation is a special process exempt from the filibuster under the requirement that anything passed through reconciliation is an alteration to the federal budget.
There are specific rules about what can and cannot be passed through reconciliation, but these rules are not hard and fast, and can be fudged a bit. This fudging is the whole point of this, so stick with me.
I want to start by talking about the process. The existence of the filibuster creates a party power prerogative that both major political parties can use to try to secure more power and influence—even when doing so does not help ordinary voters. A perfect example of this is the $1.9 trillion Covid relief bill, which just passed the House of Representatives. This package is something more than three out of four Americans support, and that includes 60 percent of Republicans. Republican Governors and Mayors are also begging for the relief in this package, and business leaders put it as a top priority. Even with all of this being true, not a single Republican in the House voted for the bill.
Given gerrymandered congressional districts, voting against this probably makes sense for a lot of Republicans if reelection is their primary concern. However, it certainly doesn’t make sense for all of them, and it makes even less sense for Senators elected by state-wide vote. But, this matters so little in today’s political world that any bookie willing to put the over-under for Republican Senators that will vote for this relief above 1.5 would probably lose a fortune.
This is because the party, rather than the voter, has become the most important entity in United States government. Why voters accept a system in which two organizations, whose sole purpose is to maintain power, and then get more of it, run our entire democracy is a mystery to me. But, that’s what we have, and only a few people seem keen on changing it.
This structure gives the filibuster more influence than it should have. In the case of this Covid-19 relief package, Republicans can bloc together to oppose the bill, despite its massive popularity, because they can create a distinction between their party and the Democratic Party. The hope is this will drive a wedge to harden voters into one party or the other, making elections in most cases less competitive. The filibuster makes it possible for every issue to be a wedge issue. With 24 hour partisan cable news, and talk radio, each party has something resembling a propaganda wing to help make the case for their wedging.
It didn’t used to be this way.
In the past, parties would take up stances on issues as a bloc to try to frame the debate. The filibuster was rarely used, and most bills could pass the Senate with just 51 votes. Without the practically perpetual use of the filibuster the incentive was much smaller for the party to stay together on everything to create us-vs-them wedges on everything—no matter how helpful the legislation might be.
In several high profile and controversial bills, one party would take a hard stance against it, try to water down the bill with amendments or compromises, and debate on TV and the Senate floor about why the bill was not a good idea. Then, once it became clear the bill had the votes to pass, several Senators from the opposing party would switch sides and vote for the bill. This is what happened with the passage of both the Medicare and Bush tax cut bills.
Party leaders have an incentive to prevent this from happening now, to wedge voters. The filibuster makes this much easier. Senate Minority Leader Mitch McConnell spelled this out referring the debate about the Affordable Care Act:
“It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out.”
Notice what he is saying here. The Senate “figuring it out” is a bad thing for the party. That means figuring out how to help voters is likely bad for about half of all senators.
The Affordable Care Act has been massively popular, and helped millions of Americans afford health insurance. Even still, opposing it was good for the party, and but for the late Senator John McCain’s famous thumbs down, the party would have scrapped it, despite its popularity.
The $1.9 trillion Covid stimulus, and the $2 trillion infrastructure plan are both broadly popular. It’s likely that, without the filibuster holding the party together, several Republicans would be willing to vote for one or both of these measures. If the party did not benefit by sending the message that these are not O.K. the vote would likely not be party line.
However, the two Senators per state setup of the upper chamber makes it more and more likely that no party will be able to get 60 votes anytime in the near future. So, because a party uniform filibuster benefits the parties—even if it hurts the voters—expect almost everything to be passed through this budget reconciliation process.
During the Trump administration all major legislation was passed through reconciliation. This included the 2017 Tax Cuts and Jobs Act, and Republicans’ attempt to scrap the Affordable Care Act which led to McCain’s most famous use of an appendage.
So, it’s clear what road the United States government is going to travel down in the near to intermediate future. A partisan Senate, passing everything through reconciliation with slightly more than 50 votes. The filibuster creates a party prerogative to refuse to help voters without that party being in power.
Since President Obama’s election in 2008 we have seen a consistent intensifying of parties gaming the system for partisan advantage. My liberal readers will immediately think of Mitch McConnell and his obstructionist strategies. It is true he has been uniquely and inventively domineering in his governance, but, though not as extreme, former Senate Majority Leader Harry Reid was also no parliamentary saint.
So, the United States’ spiral into a Senate system of party obstruction and budget reconciliation will only intensify as long as the filibuster remains in place.
The next place I will be watching for this to intensify is in a little known, non-elected position known as the Senate Parliamentarian. The most meaningful news about the Covid-19 stimulus package—by meaningful I mean the only thing that was never a virtual guarantee—was the elimination of the proposed increase in the federal minimum wage to $15 per hour. The Parliamentarian ruled that the minimum wage increase could not be carried over through the reconciliation process. There is a way to overrule the Parliamentarian on this decision, but I am not aware that it has ever been done.
So, I’m finally done with all the build up, and now we have come to this one important point.
The Parliamentarian is a non-elected official who serves at the pleasure of the Senate Majority Leader.
Read that again. I’ll wait.
Joe Manchin, the Democratic Senator from West Virginia, has said he has no interest (at least right now) in eliminating the filibuster. If Republicans gain the majority in the next few years, it may be likely they may also have a holdout, and will be unable to eliminate the filibuster.
If a party does not have the votes to eliminate the filibuster, their next best zero-sum political option would be to appoint a partisan hack as the Parliamentarian—someone who will green light everything through reconciliation, whether it has to do with the budget or not—and the Senate could function exclusively through reconciliation to avoid the filibuster.
But this is not quite the same as eliminating the filibuster. Suppose Republicans in the Senate proposed a bill broadly popular with the public. The convinced Joe Manchin and perhaps Senator Kyrsten Sinema—another conservative Democrat from Arizona—to sign on to their bill. They now have 52 votes to pass the bill. The rest of the Democratic party could filibuster this. The bill could then be moved through reconciliation. Even if this bill were the very definition of budgetary—something like Senator Mitt Romney’s proposed Child Tax Credit changes—a partisan Senate Parliamentarian could rule that it does not qualify for reconciliation.
The bill would be dead even though it was something a bipartisan majority supported. The senate would have to try to overrule the Parliamentarian, but the 48 Democrats who opposed the bill could just filibuster it. Dead.
This is the logical outcome when the system mandates that a minority of Senators—and in the case of Republicans, a minority representing an even smaller minority of voters—must be able to rule. Insisting that 41 Senator’s voices matter more than 59 Senator’s voices will likely lead to an unelected, party appointed clerk telling 350 million Americans what can and cannot become law.
If this doesn’t sound like a Democracy to you, then maybe it’s time to think about ending the filibuster.
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-Best,