Filibuster Reform is a Dangerous Necessity

Suspending the filibuster poses real risks for our democracy. Leaving it untouched may be even worse.

Last Tuesday, Joe Biden called for suspending the filibuster to pass voting rights legislation. In doing so, the President will be treading a dangerous path. If Democrats go ahead, they risk empowering Republicans in the years to come and eroding our already weakened political norms. But inaction on the filibuster now poses an even greater peril. Ultimately, securing the integrity of our elections and ending Congressional gridlock must come above preservation of the rules. Though a painfully imperfect solution, filibuster reform has become essential to safeguarding American democracy.

Filibuster reform promises to repair our ailing electoral system and could ultimately render the Senate more responsive to the American people. But it will come at two significant costs: weakening the Democratic agenda, and eroding the ground rules of American politics. The decision to suspend the filibuster would further degrade the nation’s political norms, perpetuating a game of “constitutional hardball” between the two major parties, reaching back to the 1990s. In 2013, unprecedented Republican obstruction of efforts to fill lower court judgeships was met with the Democrats’ suspension of the filibuster for those positions. Four years later, Mitch McConnell extended that principle to the Supreme Court, pushing through Justice Neil Gorsuch with a simple majority. Each side takes a modest step, but neither backs down.

Voting reforms come at the cost of escalating that stand-off again. Though Democrats frame their proposed suspension of the filibuster as a special case for voting rights, the recent history of our democratic institutions hardly suggests such restraint will prevail. Once the genie is out of the bottle, we could soon end up with no filibuster at all, energizing a dangerous tit-for-tat dynamic. Workable politics in a democracy depends on a set of agreed-upon norms about basic rules, but these norms are themselves subject to change. Most dramatically, their erosion culminated in the majority of House Republicans refusing to certify the 2020 presidential election. A further breakdown of bipartisan cooperation on America’s fundamental institutions could be perilous.

Those concerned with the Democrats’ political agenda have reason to worry too. Though easier voting has often been thought to disadvantage Republicans, that pattern may be changing. Glenn Youngkin’s victorious campaign for the Virginia governorship suggests Republicans are more than capable of competing electorally, even in a state where prior efforts at voter suppression had been dismantled by state Democrats. Removing GOP restrictions will not necessarily unveil a more liberal electorate. 

Yet more dangerous for Democrats and their agenda is the precedent they would set for the GOP. Republicans would feel free to jettison the filibuster for their own priorities when they next control both houses of Congress. Given the Senate’s structural bias towards rural states, that day is not far off. Mitch McConnell would blame Chuck Schumer, ram through his favored laws, and move on. Imagine a national bill banning abortion after six weeks, the near-total elimination of corporate taxes, or perhaps a national voter-ID law, which would disproportionately disenfranchise the poor.

At worst, Democrats may have already risked such a scenario without the firepower to actually enact their reforms in the first place. Given the continued opposition of Democratic Senators Joe Manchin and Kyrsten Sinema to suspending the filibuster, there is a very real prospect of no legislation passing at all. Assuming the current situation holds, Democrats would have highlighted their own deep division while signaling their willingness to attempt a breach of precedent. Republicans would still have a good excuse to scrap the filibuster entirely when back in power. And Democrats would have engaged in little more than an extended act of self-sabotage.

---

Yet for all its flaws, filibuster reform remains vital. America’s electoral process is under threat in ways not seen for decades. The 1965 Voting Rights Act, which ended sub-national authoritarianism in the American south, has been gutted by the U.S. Supreme Court, beginning in the 2013 case of Shelby County v. Holder and continuing in last year’s Brnovich v. DNC. These cases gave the green light to a surge of restrictions which make voting more difficult, pushed through by Republican-controlled state legislatures. Such restrictions range from those with surface plausibility (preventing ballot harvesting) to the ridiculous (ending same-day registration and banning the distribution of water to waiting voters). Other states have resorted to plain voter intimidation, encouraging a return of MAGA-hatted poll “monitors.” The intent behind such efforts, and their systematic targeting of Democrat-leaning voters, are insidious in the extreme.

Perhaps most dangerous of all, however, is the threat to election certification. Once a formality, the process of certifying election results has become one of the most likely avenues for overturning a free and fair vote. Eight GOP Senators and 139 House Representatives objected to certifying the results of the 2020 Presidential Election, while Republicans in Michigan attempted a similar process on the state level. Proposals in Arizona and Oklahoma would have allowed the state legislature to choose its electors without regard to the popular vote. Unchecked, such measures will critically undermine our democracy.

Suspending the filibuster to permit election reform is key to stopping this onslaught on our electoral process. The Democrats’ proposed Freedom to Vote Act has begun, though as yet insufficiently, to address the risks posed by subverting election certification, by allowing citizens to sue if their vote has not been counted and certified. On the issue of standard voter suppression, the bill promises to expand no-excuse absentee ballots, create federal standards for election infrastructure, and limit state purges of voter rolls. Even if certain proposals, such as requiring nonpartisan redistricting commissions in every state, might not survive Supreme Court scrutiny, Democrats’ legislation would be a vital step in safeguarding the sine qua non of any democracy—free and fair elections.

Finally, there are good reasons to support Biden’s reforms beyond their intended effects on election-related legislation. Though they may result in the filibuster’s total demise, that disappearance could be a blessing in disguise. Any system which allows Senators representing a tiny minority of the electorate to exercise outsized power is itself dangerous, especially when that grip has allowed our electoral system to degenerate unchecked. The potential death of the filibuster would give new life to Congress, easing the institutional gridlock which has sapped belief in our political system, and prevented either party from enacting the policies they promised the electorate. A legislature that can respond to the American people would restore faith in our democracy at a time when so many have lost it. A legislature that remains moribund will leave America’s deep problems unsolved, and validate those who view our political system as broken, and thus disposable.

Filibuster reform is undeniably a double-edged sword. America’s political norms may degrade even further. Democrats might find that their proposals even accelerate the return of the GOP, at the cost of their own agenda. Yet if filibuster reform comes with a high price, it is a price worth paying. Biden’s plan has the potential to fix our deeply compromised elections, and to make Congress more functional in the long term. Most importantly, it would force Republicans to return to competing for votes, rather than suppressing them. The health of American democracy depends on it.

Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.