Monday Newsletter

Happy Monday!

For the first time since the election, I am now feeling optimistic about the political future of the United States. Maybe it was the two surprise votes to convict Trump from Cassidy and Burr. Maybe it was hearing the entire Senate burst into laughter at how ridiculous Trump’s lawyers were. Of course, the result wasn’t what I wanted it to be—what the country needed it to be—but I suppose I have long since given up on the Republican Party to do what is right. Yet despite Trump remaining the favorite to win the Republican primary in 2024, I feel relieved that this last chapter of his disastrous presidency has concluded with far more Republicans rebelling against him than anyone expected. Perhaps there is a future for the Republican Party? We can only hope.

Meanwhile, a top Biden aid, TJ Ducklo, has resigned after he was suspended for one week without pay. Ducklo threatened a White House reporter and used derogatory language. In his first few days, Biden told his administration that if anyone did not act professionally and conform to the new tone he was trying to set in the executive branch, he would fire them on the spot. Yet confronted with his first personnel incident, Biden refused to follow through on his prior pledge to the country. While small beans compared to the scandals in the Trump administration, I believe that the president and White House staffers should be held to a higher standard—not graded on a curve that includes the Trump family, Stephen Miller, and Jason Miller. I am glad that Ducklo will not return to the White House, but I am extremely disappointed that his resignation came only after pressure from the press.

Procedure: The filibuster

The filibuster will likely be eliminated in this session of Congress. Before we dive into why, let’s first discuss what it is. In parliamentary procedure, members must vote to end debate and move into voting procedure on a resolution. In the Senate, this vote is called a cloture motion and requires 60 votes, a supermajority. Refusing to invoke cloture means that the minority party is filibustering the resolution. The filibuster originated after Vice President Aaron Burr advised the Senate in 1806 to eliminate a provision that could allow a simple majority of the Senate to call for a vote. Thereafter, Senators would just continue to talk ad nauseam until the Senate dropped the matter. In 1917, the Senate decided to reinstitute the motion that Burr got rid of, but instead required a 2/3 majority vote to end debate. This was later reduced to 3/5 in 1975. In 1974, Congress passed the Congressional Budget Act which established the budget reconciliation process in which economic (taxes and government spending) provisions could be passed with a simple majority—this is the provision that Republicans used to try to kill the Affordable Care Act in 2017 and that Democrats are using now for COVID.

More recently, the filibuster has been adjusted so that it is no longer necessary for debate to remain ongoing to prevent moving into voting procedure. As a result, Senators no longer have to read cookbooks and children’s stories to the Senate chamber during a filibuster—they only have to vote down a cloture motion. As a result of the increasing convenience of the filibuster—along with the increased partisanship—the number of filibusters has grown significantly since the waning years of the Clinton administration (see figure). This is why former Democratic majority leader Harry Reid invoked the nuclear option to remove the filibuster for judicial and executive branch nominees in 2013 and Republican leader Mitch McConnell completed this process in 2017 to extend the simple majority threshold to Supreme Court nominees. Okay, enough about arcane Senate history…on to why this is important.

(Thanks to the Brookings Institute for the history and figure above)

The reason to get rid of the filibuster is pretty clear: with only seven Republicans voting to convict Trump, the chance of winning over ten to pass any particular item in the Biden agenda is zero. While Democrats can use budget reconciliation for COVID and climate, a lot of their measures will require 60 votes to invoke cloture, including their John Lewis Voting Rights Act. With Republican state governments moving to restrict voting to levels unseen since Jim Crow, I don’t see the centrist Democrats like Kyrsten Sinema (AZ) or Joe Manchin (WV) refusing to remove the filibuster in order to pass such a bill crucial to preserving the franchise for millions of Americans. In other words, if Republicans filibuster an important Democratic priority, the filibuster will probably not survive.

I think that it is important to note that the filibuster generally favors Republican priorities. Why? Republicans essentially have three policy goals: deregulation, conservative judges, and tax cuts. Deregulation is in the President’s power, judges require only 50%+1 votes due to Reid and McConnell’s reforms in 2013 and 2017, and tax cuts require only 50%+1 under reconciliation. Even the ACA repeal attempt occurred under reconciliation. Most of what Republicans actually want to do require 51 votes. Meanwhile, most Democratic priorities require 60. Civil rights, DC/Puerto Rico statehood, immigration reform, etc etc. Basically everything except COVID relief, tax reform, and climate. So the filibuster does not protect the minority so much as it protects conservatives.

Furthermore, the filibuster creates adverse incentives. Let’s first consider different actions that the majority (with control over Congress and the presidency) and the minority can take and their payoffs. The majority wants to pass its policy, but would rather pass policy with bipartisan support to point to the president’s leadership. Meanwhile, the minority’s best action, if possible, is to prevent any policy from being passed and refusing to give their support. There is no reason to hand a political victory over to the president’s party, especially if that victory allows the president to campaign on his bipartisanship. The minority’s next best action—if they cannot block the legislation—is to compromise and try to get some of their proposals into the bill so they can tell their constituents that they were bipartisan and contributed to a popular bill. The worst outcome for the minority is for the majority to steamroll them and pass a law without bipartisan support. In this case, the minority seems obstructionist, especially if the underlying bill is popular like the COVID relief package. However, this worst outcome allows the minority to vilify what the majority got passed, just as they did with the ACA. With these preferences established, it is clear that with the filibuster, the minority will refuse to compromise and will block all legislation even though the majority desperately wants to compromise. Without the filibuster, the minority falls back on either plan B or C—seek compromise and work on the bill together, or refuse to compromise and vilify the other side (well, vilification is going to happen in any case). Bipartisanship suddenly becomes a viable option—indeed the preferred option—for the minority instead of defaulting into obstructionism. While I don’t see bipartisanship happening on the most polarizing aspects of the Biden agenda, I think that it would be possible for infrastructure and immigration without the filibuster in place.

Ultimately, there is little political downside if Democrats eliminate the filibuster and much more upside for them by getting their policies passed. Voters simply don’t care about the filibuster compared to the policies that actually affect their day-to-day lives. As a result, my prognosis for the filibuster is grim.

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See you soon!

Ian