Saturday, January 22, 2022


On Thursday, New York magazine's Jonathan Chait published a post tilted "The Filibuster Is Living on Borrowed Time." A couple of hours ago, at The Atlantic, David Litt posted "The Filibuster Is Still Doomed." Chait and Litt both acknowledge that Democrats are likely to lose their Senate majority in the midterms, and might not regain it for quite a while, but they both believe a return to a Democratic Senate will come sooner or later, and now that 48 out of 50 Democrats have expressed a willingness to take on the filibuster, surely it's on its last legs.

I want to believe that Democrats will eventually regain the Senate if they lose control this year. Then I remember this:
Buried at the bottom of a ... column, the Wall Street Journal’s Gerald Seib relayed a nugget of data he’d picked up.

“David Birdsell, dean of the school of public and international affairs at Baruch College, notes that by 2040, about 70% of Americans are expected to live in the 15 largest states,” Seib wrote. “They will have only 30 senators representing them, while the remaining 30% of Americans will have 70 senators representing them.”
And one of those big states will be Texas, where Republicans have been extremely successful in maintaining one-party rule. Another will be Florida, which has a hapless Democratic Party and equally aggressive Republicans. We think American politics is "thermostatic," therefore party control of Congress changes frequently, but that hasn't always been true. Democrats controlled the House for all but four years between 1933 and 1995, and the Senate for all but four years between 1933 and 1981. Republicans might control the Senate for decades after this year's midterms.

Yes, but they might want to eliminate the filibuster themselves, right? And surely they won't be timid about getting rid of it.

Litt believes Republicans might eliminate the filibuster if they control the Senate and Donald Trump regains the White House in 2024.
The last time the GOP held the House, White House, and Senate, in 2017, Republicans ignored President Donald Trump’s repeated calls to end the legislative filibuster. But if they regain control of Washington in 2024, the situation will be very different. Any newly elected Republican senators will belong to a party in which fealty to Trump—a filibuster opponent—is the most important plank.
But they might fear that Democrats could regain the Senate, despite the demographic roadblocks, and despite the roadblocks their party has built in the states. That seems to be Mitch McConnell's perspective on the filibuster. He wants to keep it, while carving out exceptions that help Republicans. Chait writes:
The rules McConnell helped design are very much to his liking. The measures he wants to pass can pass with 50 votes: tax cuts, spending cuts, and confirming judges. Measures he generally opposes, like creating new laws and regulations, need 60 votes.... As it stands, Democrats needed 60 votes to pass Obamacare, while Republicans needed only 50 to destroy it. (They came up one vote short.) Conservatives could hardly design a more favorable arrangement.
Besides tax and spending cuts and seating Federalist Society judges, what else do Republicans want to do with their power? Not much. Maybe they want to restrict abortion and loosen gun laws -- but the Supreme Court might do all of that for them this year.

I can imagine Republicans eliminating the filibuster for their own election laws, which would nationalize what they're already doing in the states. But that might be the only legislation they'll care much about. Those new laws will make it even more difficult for Democrats to regain Senate control in the future. Eventually Republicans might have 60 senators and the question will be moot, or they'll just kick back and let the Supreme Court do their legislating for them fom the bench. And maybe we'll forget we ever talked about filibuster reform.

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