President Joe Biden and Democrats in the Senate have prepared a special gift for the 93rd birthday of the Reverend Martin Luther King Jr.: declare hyperpartisanship an irresistible reality and capitulate accordingly.
In particular, to advance voting rights legislation, Democrats are on the verge of removing the Senate filibuster, the 60-vote threshold for advancing legislation to allow bills to pass by a simple majority of 51 votes. It seems to me both ironic and cynical that this cowardly surrender to partisanship is due to King, a leader who never wavered in the face of adversity.
Of course, Congress is called upon to protect every citizen’s ability to vote, and there can be—and should—a healthy discussion of many of the provisions contained in the Freedom to Vote Act, as well as the John Lewis Voting Rights Extension Act. I argued that there should be no difference between the ability of a voter from Texas to participate in a national election and a voter from Massachusetts or California. As several hundred election-focused bills pass through state legislatures across the country, it is clear that this is a time when Congress and the courts must take a close look at voting rights and intervene to protect this most fundamental component of participatory democracy.
However, this is a different controversy. A filibuster debate about accepting the defeat of our overpartisan times and abandoning forever the notion that the Senate is “the greatest deliberative body in the world.”
The filibuster defends the minority party and puts bills to the vote only if at least 60 senators agree with them. This forces the Senate to actually debate issues that determine the future of our country, instead of simply relying on 50+1 as a winning formula.
The filibuster is frustrating, often reviled (thank you, Ted Cruz, for spoiling Green Eggs and Ham for generations to come), and stifling the majority’s ability to make big changes quickly.
This is also what distinguishes the Senate from the House of Representatives.
The Senate was specifically designed to be a slower, more isolated chamber that, thanks to six-year terms, wasn’t going to just ride the wave of popularity when considering legislative action. It’s also, quite frankly, one of the last safeguards against extremist lawmakers on both sides of the aisle pushing through laws that the vast majority of the country would oppose.
None of the above is a judgment on the necessity or merit of voting rights legislation. But if Biden and Senate Democrats make one more filibuster exception on this particular issue, then the Senate, as envisioned by the Founding Fathers, will cease to exist.
As the Senate makes clear on its own website: “Madison himself explained to the creators that the Senate would be a necessary guard against the fickleness and passion that tend to affect the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the planners created the Senate to cool House bills, just like a saucer was used to cool hot tea.” In other words, the Senate slows down the House of Representatives, and no simple majority can dictate the way forward through a filibuster.
One would think that Democrats had already learned this lesson: in 2013, frustrated by Republican filibusters under the Obama administration, Democrats abolished filibusters for cabinet appointments and judicial appointments, except for the Supreme Court.
When the Republicans took back the Senate, hundreds of federal judges were confirmed by simple majority under the Trump administration.
And the simple majority threshold was extended to Supreme Court candidates, allowing Senator Mitch McConnell to confirm three extremely conservative justices on the court without having to look for candidates who could garner significant Democratic support.
Majority Leader Chuck Schumer is absolutely right that protecting every citizen’s right to vote is a fundamental duty of government in a free and democratic society.
And Minority Leader Mitch McConnell is absolutely right when he said in March 2020 that the filibuster serves the creators’ intent, requiring careful deliberation by the Senate so that cooperation results in federal laws broad enough to merit the strong consent of the governed. The two of them have the responsibility to avoid the “nuclear option” of replacing the filibuster with a simple majority.
We need to sit down at the negotiating table, ready to give up the power of the majority; the other is to let his conference negotiate in good faith.
It’s called political leadership, and King’s memory will serve much better.
Pete Weichlein is CEO of FMC: Association of Former Members of Congress. He wrote this for The Fulcrum, a non-profit, non-partisan news platform highlighting efforts to fix our governance systems.