Earlier this month, Senator Kyrsten Sinema, speaking to reporters, laid out a thoroughly ahistorical defense of the filibuster. To be fair to Sinema, her initial error, crediting the filibuster to the Founders (who in fact rejected it, only for it to emerge by mistake decades later) is a common one, and she was speaking extemporaneously.
Today, Sinema has a second shot to explain her thinking in a Washington Post op-ed. But her revised filibuster rationale, despite having the benefit of premeditated thought and editing, still relies on utterly false grounds.
Sinema’s central argument is captured in the headline “We have more to lose than gain by ending the filibuster.” She warns that a majority-rule Senate would allow Republicans to easily roll back any Democratic policy gains:
And, sometimes, the filibuster, as it’s been used in previous Congresses, is needed to protect against attacks on women’s health, clean air and water, or aid to children and families in need …
To those who want to eliminate the legislative filibuster to expand health-care access or retirement benefits: Would it be good for our country if we did, only to later see that legislation replaced by legislation dividing Medicaid into block grants, slashing earned Social Security and Medicare benefits, or defunding women’s reproductive health services?
To those who want to eliminate the legislative filibuster to empower federal agencies to better protect the environment or strengthen education: Would it be good for our country if we did, only to see federal agencies and programs shrunk, starved of resources, or abolished a few years from now?
Almost every specific example she cites here as a possible or actual grounds of defense by the filibuster cannot be protected by the filibuster.
The reason is that the Senate has work-arounds for the filibuster. One is for confirmation of judges or executive-branch appointments. The other is for bills that change taxes and spending. The latter, called budget reconciliation, can be passed with 51 votes.
Almost every program Sinema cites above is a spending program that can be defunded through budget reconciliation: women’s health, aid to children and families in need, health care, Medicaid, Medicare, women’s reproductive services, funding for federal agencies to protect the environment and education. Several of them have been targeted in budget reconciliation bills.
Budget reconciliation rules do exempt Social Security (an exemption that is itself yet another of the Senate’s arcane, idiosyncratic distinctions that serve no logical purpose — why should Social Security alone have a protection that, say, Medicare and Medicaid don’t?). Likewise, regulations (such as clean air and water) can’t be repealed through budget reconciliation, though their enforcement can be defunded, or simply curtailed through administrative neglect, neither of which is subject to filibustering.
Given that Republicans could roll back any of the vast array of federal programs cherished by Democrats with a majority in both chambers and the presidency, why didn’t they do it either of the last two times they enjoyed full control of government?
The answer points to the essential fallacy of Sinema’s reasoning. Nearly all those programs are popular — so popular that even Republican voters would blanch at attacks on them. Republicans suffered grievous political damage when they attempted to defund Obamacare. (That episode points to yet another asymmetry of the filibuster — a law that required 60 votes to enact could have been destroyed with a mere 51.)
The federal government is filled with functions that the modern version of the Republican Party would never agree to create. The 1970 Clean Air Act, creating the Environmental Protection Agency, passed both chambers by a cumulative vote of 447-1, an unimaginable outcome today. And yet those programs and agencies generally earn broad public support and prove impossible to uproot.
A system in which both parties can advance their popular beliefs when they have control of government therefore benefits Democrats disproportionately. Republicans may have some measures they could pass in the absence of a filibuster but not otherwise, yet over the long run, Democrats have far more. That is why, when they controlled government, Republicans frankly confessed that filibuster was “what’s prevented our country for decades from sliding toward liberalism.”
If Republicans have policies they can pass with majorities in both chambers, then they should pass them. If those policies attract broad public legitimacy, they will stay in place. If they are as repellant as Sinema fears, they will be repealed when Democrats have their turn in power. There’s simply no reason why preventing Republicans from trying out their preferred policies is so vital that it justifies handicapping Democrats in the same fashion.
The Republican argument for a filibuster is perfectly coherent. Republicans understand full well that they stand to lose over both the short and long run by a system that enables parties in power to make change. The Democratic case for the filibuster is a sloppy mess, which is why advocates like Sinema rely on stating “facts” that simply aren’t true.
