Today on “The Argument”— should Democrats kill the filibuster?
- archived recording
President-elect Joe Biden is under pressure from some in his party to reform what’s known as the filibuster in the Senate. It is a rule designed to allow a minority of senators to prevent a vote on an issue by continuing to debate it. But the reality of the filibuster is paralysis. If your legislation can’t pass the Senate, you don’t scrap the rule. If the Republicans, if there’s no way to move other than getting rid of the filibuster, that’s what we’ll do.
For the first time in 10 years, Democrats control the White House and both houses of Congress. But there’s a major roadblock standing between them and their sweeping legislative agenda. It’s the filibuster. A powerful procedural weapon, the filibuster effectively creates a 60-vote minimum to pass most laws. Democrats only have 51 votes at the moment, including Vice President Harris’ tiebreaker. Finding enough Republicans to break rank just isn’t going to happen, which means the big ideas— strengthening voting rights, a Green New Deal, or a pathway to citizenship for undocumented immigrants— none of it is likely to pass unless Democrats push the filibuster off a cliff.
I’m Jane Coaston. With the future of the filibuster up for debate once again, I’ve invited two people on today’s show to argue for and against. Of course, I’ve got some pretty strong feelings of my own on the issue. Just wait for it. Ezra Klein is an opinion columnist for The New York Times and host of “The Ezra Klein Show.” Jessica Anderson is executive director at Heritage Action for America, a conservative group based here in Washington, DC.
Hello, Ezra. It is always nice to see you.
And, Jessica, thank you so much for joining us.
Thanks for having me, Jane.
Ezra, I’m glad you’re here, because we’ve worked together for a long time, and I don’t think I’ve ever told you that we disagree about the filibuster. So —
I can understand why that would have been awkward for you to bring up.
Yes, in our time together. But, Jessica, I do not know you as well. But I’m excited to get to know you, because I think we kind of agree but don’t agree.
So we’re going to agree to disagree on all three levels today, then.
But I believe I oppose agreeing to disagree.
So we’re going to disagree to agree to disagree.
Done. I’m there.
Ezra, you’ve written extensively on the filibuster. You’ve done interviews, including a very good one on “The Ezra Klein Show,” with Adam Jentleson just recently on the filibuster. You care about the filibuster more than a lot of people care about a lot of things. You want to kill the filibuster. Have you always wanted to kill the filibuster?
I’ve wanted to kill the filibuster since I began reporting on the Senate in earnest. I came to Washington in 2005 and began doing Congressional reporting about then. And I was pretty down on the filibuster pretty quickly after that. If the filibuster did what it says on the tin, I would not want to kill the filibuster. If it increased deliberation in the Senate, I would be for it. But it does not — it impeded deliberation in the Senate. If it increased compromise, I might be for it. But it does not — it impedes compromise, and at the very least makes full-on obstruction more likely than compromise. The issue I have with the filibuster is not that there should not be a way for the minority to make sure its voice is heard, not even to ensure things are slowed down and considered, it’s that the way I believe a system like ours, a political system like ours, should run — the way it was intended to run by the founding fathers is that the American people should vote in a political party, that political party should pass some rough facsimile of the agenda they promised the American people, they should be critiqued by the opposition party, and then the public should decide, the voters should decide, did that agenda work? Do they want to return those people to office, or do they want to kick them out of office and give the other side a try? Instead, what we have happen is the public votes in a party. That party may or may not win power, depending on the electoral college and the geography of the Senate — but put that aside for a minute. Then that party comes into power, they don’t pass very much of their agenda at all. The public does not understand why the problems keep going unsolved, but the opposition party runs against whoever’s in power as not doing a good job. And basically, you end up in this endless fight over accountability. And there’s this huge fog over who to blame for why people’s problems keep festering. And so my core principle here is that politicians should be accountable to the public. When you strangle so much legislating in opaque Senate rules, and you create such bad incentives, frankly, for compromise, I think you rob the public of the ability to attach clear accountability to outcomes, and thus you rob them of their power over the political system.
Jessica, you want to keep the filibuster. Have you always wanted to keep the filibuster?
I have struggled with it. And I have struggled with it when conservatives were in power. And I ultimately decided that I was not comfortable with this power grab under the kind of farce, if you will, of principle, because I didn’t want it to happen later. So I actually don’t know that I agree with the lack of accountability because of the filibuster. I think in a lot of ways, the ability to have more debate is exactly what our country needs. That conversation is good. And that having consensus and unity is better than jamming something through. I also think — and this is what ultimately won me over at the end of the day to fall in love with the filibuster, which is such a strange thing to say — but the reality is, I think things have actually gotten done. Now, of course, you could argue, has everything gotten done? But when you look at the last 20 years when Republicans were in power or when Democrats were in power, they got big pieces of their legislative agenda through in spite of the filibuster being there, and because of the filibuster being there, allowing for more consensus, more debate, more conversation, more checks and balances. The reality is, this is the kind of stuff that ensures we have some sense of checks and balances with a very polarizing country, and especially today when we’re dealing with such deep, divisive issues. I would rather people come to consensus.
So the reasons for eliminating or keeping the filibuster, to me, seem entirely related as to whether it is good for the party that’s in power. So in recent years, Chuck Schumer used the filibuster to stop multiple pieces of legislation coming from the Trump administration. You saw Schumer use the filibuster to block funding for construction of Trump’s border wall in 2019. They used it twice on the passage of the CARES Act to force Republicans to agree to changes involving a weekly federal unemployment supplement. And they used it to stop Republicans from passing further COVID relief until after the election. There’s a long list of times in which Chuck Schumer used the filibuster. And now Joe Biden is president, and Democrats have the majority — the thin majority — in the Senate, so why is the filibuster good for Democrats when they’re in the minority, Ezra, but bad now?
So as you know, Jane, so at Vox, when Donald Trump said that we should get rid of the filibuster, we wrote an article saying, Donald Trump is right, and we should get rid of the filibuster.
I did not write that article. I was busy that day.
You did not. But I’m saying that I was there.
If I frame that, will you sign it for me?
Absolutely. And I’m sure Dylan will too.
Donald Trump was right.
Yeah, Donald Trump was right about the filibuster. So I think there are a couple of things to say here. Let me first say I completely disagree with the premise of that question. I think it’s a real mistake to try to judge this from the momentary incentives of either party. You’re a sports person in a way I’m not, Jane — this is a long conversation between us. You’ll be able to come up with a better analogy. But of course, everybody’s going to play to the maximum advantage of the rules as they are constructed at any given moment. It would be crazy not to. But the rules should change for everybody simultaneously. And I’ve for a long time argued that a good way to change the Senate rules would be to do a package of changes that triggers six years after the date of enactment, because then you won’t know who has control of the Senate when they come into power. I would also just get rid of it now, but if people are worried about that, they can do that. The broader issue here is that this is a bad way to legislate. So let’s talk a little bit about what does and doesn’t go through the filibuster. So judicial nominees don’t. Supreme Court nominees included do not. Executive branch nominees do not. Now there’s budget reconciliation, which is a misuse of a 1974 process meant to expedite budget and spending adjustments. But people began to realize as the filibuster got overused, that because it was limited to 20 hours of debate, it was a way of getting around the filibuster. I don’t know what Heritage Action’s position was on using budget reconciliation for repealing Obamacare and passing the Trump tax cuts — and the Bush tax cuts for that matter. But I think you guys were supportive of it. So big things go through budget reconciliation, and that’s protected from the filibuster. That’s a 51-vote process. Budget reconciliation has very weird limitations on it, so you need to do things that are primarily about taxing and spending, but that doesn’t mean they have to be what we would think of as taxing and spending bills — so, again, for instance, repealing Obamacare. But then what’s weird is that you can pass trillions of dollars in tax cuts for corporations with 51 votes. But if you want to do universal background checks for guns, you need 60. If you want to do immigration reform, you need 60. If you want to do something significant that’s regulatory about climate change, you need 60. I don’t think you should have this totally variant threshold for how you pass bills in the US Senate. I don’t think, for instance, it should be 51 votes to pass out $2,000 checks, but 60 votes to protect the very right to vote itself, or, say, to legalize marijuana. It’s just not a sensible way of making policy. We can have a whole conversation about whether or not the filibuster encourages deliberation. I think it’s very clear at this point it does not. Filibusters have nothing to do and do not currently include people talking on the floor of the Senate for the most part. But putting that aside, the real question is the 51 versus 60-vote question. Because we could have all kinds of ways to ensure lengthy debate processes that don’t include a 60-vote supermajority. So then we should just get at that directly. Does it make more sense to have majorities pass legislation, or should you always require supermajorities in order to do so?
Jessica, what’s the difference between judicial nominees and every other form of legislation when it comes to the filibuster?
So I think it goes back to the very principle of a judicial nominee that makes up the judicial branch versus those pieces of legislation that keep the government open. So I actually don’t have a problem with 51 votes to keep the government open with a budget or spending bill. I have a problem with 51 votes to have fundamental social and socioeconomic changes that are part of the cultural agenda — whether that’s court-packing, or amnesty, immigration, gun control, Second Amendment, minimum wage — all of that is kind of in this social space is a different type of conversation, I think, for the Senate to deliberate, because it impacts the social side of, frankly, the country as opposed to simply trying to keep the government open and ensure that the government works, which is what comes down to the vote of 51. And I think you can have a conversation, is it 51 or 52? Or is it 50? That ends up becoming, I think, in a large way, arbitrary. But what I think matters is that the filibuster prevents 51% of the country from overcoming and then running the lives of 100% of the country. So I agree with a lot of Ezra’s opening comments that we want the people to be able to hold our elected officials accountable. We want them to be clean and clear lines of accountability. I think we all want that. We strive for that. But I don’t see how the filibuster prohibits that. I think if anything, it allows more senators to have more debate, get on the record about more issues, like these policy issues that are the cultural, social level that are worth the discussion before they move forward. So to me, it’s a fundamental —
This is incorrect. The way budget reconciliation works doesn’t split only social and cultural off from fiscal.
Well, tax, budget, and spending are all reconciliation.
For instance, Obamacare was not just budget and spending. It’s a lot of different things. I’ll give an example this — in the current fiscal rescue package that the Biden administration is trying to put forward, something you could do through budget reconciliation is triple the size of the child tax credit. Something you cannot do through budget reconciliation is emergency paid leave. I do not see myself an obvious sociocultural difference between allowing emergency pay leave and a child tax credit during a pandemic emergency. Do you? Is there some reason emergency pay leave should have a 60-vote threshold, but tripling the child tax credit, or sending out $1,400 checks, or any of these other things should not?
Well, I think that gets to the exact question that we’re having here, which is, what is the difference of the impact? And if you look at the difference of the impact of tax credits — which is less dollars that are taken away, and essentially your money that you get to keep without a higher burden of tax — that’s different than an additional spending bill that’s put on top. And so is it splitting hairs? Do the parlertarians and the parles have a very difficult decision to split hairs between the two? Yeah, but I think that’s exactly what the Senate process is supposed to really uncover.
But these bills don’t just cut taxes, they can increase them too, right? The Biden bill — as you guys know at Heritage, it’s not going to cut your taxes. It will cut taxes for some people, but —
I want to jump in here — guys, I want to jump in here for a second. Jessica, I also wanted to ask you, because you differentiate between judicial nominees and these other — but judicial nominees have massive import in the everyday lives of American people. I was at the Human Rights Campaign during the marriage fight in 2014-2015, so again, if we are going to be making these decisions about judicial appointments that will have major decisions over whether or not a police officer receives qualified immunity, or decisions about — in 2014-2015, it was marriage equalit y— or any of these major social issues, which we, as I get the emails from the Heritage Foundation, the courts are making up a large percentage of the decisions that then go on to define the lives of the American people. Why are judicial appointments considered to be so different?
I think you just answered it — it’s the judiciary. I mean, it just is. The judiciary is a separate branch of government and has a separate line when it comes to checks and balances. And at the end of the day, the Noms argument to keep the judicial branch in place is the only way you would have a judicial branch. Otherwise, would we even have one?
Look, until a couple of years ago, we had judicial nominees under the filibuster as well. Every argument that is being made here on this show to keep the legislative filibuster was made to keep the judicial filibuster. But I do want to respond to something that Jessica said earlier about not allowing 51% of the country to make these huge decisions. There are two things that are worth noting here, one is that the Senate is very unusually structured, such as it already has quite a lot of disproportionate impact embedded within it. So the 50 Democratic senators represent 41 million more people than the 50 Republican senators. We’re dealing with a situation here where the Senate is already giving a pretty big handicap to the Republican side at this point, between 3 and 7 points, depending on different estimates I’ve seen. And then you add the filibuster supermajority requirement on top of already the Senate’s equal branch requirement. This is just not how the place was meant to work — not for judges, not for anything, but a couple things which in the Constitution are specifically given supermajorities, like conviction for impeachment, certain kinds of foreign deals, et cetera.
Jessica, I want to ask you — if Mitch McConnell still had control of the Senate, I’m pretty sure that he’d be willing to blow up the filibuster if that meant that we could have gotten funding border wall, or a ban on taxpayer funding for abortion services, or any of the concepts that are extraordinarily important to conservative voters — conservative voters that work with Heritage Action. And so I want to bring it back to reality here, which is if Mitch McConnell said, we got to get rid of the filibuster, what would you think about that?
I don’t think we would support him wanting to do that.
You don’t think that would happen?
I don’t think so. I don’t, because the reality is that conservatives, yes, we care about being able to get a policy agenda through. We care about being able to use all of the tools in our toolbox. But abolishing the filibuster isn’t one of them. The filibuster exists because it is meant to be a function of the Senate, allow for that debate. And I think at the end of the day, most conservatives are going to come down on the side of, well, what happens later? And this goes to conversations that we’ve had the last decade in the conservative movement — well, if we do this now, what happens when we’re not in power later? And so it’s not as clean and clear as a principled discussion. And so at the end of the day, I think it really comes down to, you may want to bust up the rules, rig the rules, change things when you’re in the majority. But when you’re in the minority, you’re really thankful to have some protections. And you’re really thankful that you can’t get rough shot when it comes to a policy debate. And for conservatives, that overcomes any quick, short-sighted view of power. And we don’t all agree on this. I totally think that’s fair. Because at the end of the day, sometimes you want more power. But —
I was thinking about this, because, as Donald Trump does, I often differentiate between Republicans and conservatives. Because as Donald Trump once said, it’s the Republican Party, not the Conservative Party. And I think that there are a host of Republicans who would be like, funding for a wall? A ban on taxpayer funding for abortion services? Absolutely, let’s do it today.
But they’d also want to use the rules to get it done. I think that’s a fundamental difference. And it can be a problem, right — it can be an impediment. But at the end of the day, I think Republicans conservatives by and large lean back to what are the boxes we have to argue in? And what are the boxes we have to get our stuff done? I mean, we’ve gone to war. We passed huge stimulus packages, Dodd-Frank, ACA — there’s been a number of policy agenda issues that have gone through with the filibuster in place. So I don’t think it’s fair to say that we would just all jump on board just because McConnell comes out tomorrow and says, that’s it. It’s done. We’re moving on. Cocaine Mitch has spoken. I think you’d have some people saying, hold on. Where are our checks and balances? Let’s not allow power to overtake the principle.
So putting aside hypotheticals about the future, one reason I think it is fair to say conservatives do not hold the principled view you ascribe to them here is that it keeps being tested, and they keep not holding that view. So Mitch McConnell cut the filibuster on Supreme Court nominees, and conservatives created an ad hoc argument for why judicial nominations are different than legislative. Then the two major bills of the Trump administration went optionally through the budget reconciliation process. Nobody made them do the Trump tax cuts through budget reconciliation. They could have done more and had them last longer if they went through the normal process. Nobody made them try to repeal Obamacare through budget reconciliation. And conservatives broadly, Republicans broadly, and Heritage specifically did not fight either of those as processes. And moreover — and I think this is really, really, really important — the idea of deliberation keeps coming up here. That is not how the filibuster works. The filibuster does not give anybody deliberation rights right now. The floor agenda is set by the leader. There is not debate on almost anything. Filibusters. are communicated, both publicly and privately — remember, we have this quasi-filibuster called a hold which gets communicated directly to the leader’s office. Often, people don’t even know who did it. You almost never have a debate filibuster.
No, you have paper filibusters.
If what we want to do is have a situation where you are ensured debate on big bills, lengthy debate, you can 100% d that. The best of the filibuster reform plans I’ve seen, which is from former Democratic Senator Tom Harkin, included a ratcheting down of the vote threshold from 60, down to 57, down to I think it was then 54, all the way down to 51, with each one having days of debate in between to make sure there was that time for debate. It would be an interesting thing to create a Senate that runs again by regular order, that uses committees, and has real debate. But this doesn’t. So let’s have some first principles about the Senate and build the Senate according to those first principles. But let’s not have a mythological story about the Senate that we used to defend a dysfunctional status quo. [MUSIC PLAYING]
Do you want to be a part of “The Argument?” Call me up and tell me what you’re arguing about right now with your family, your friends, or strangers on Twitter. The number is 347-915-4324. Leave a voicemail, and you might hear yourself on a future episode. That’s 347-915-4324. Ezra, you argued at “Vox” that without the filibuster, Republicans would essentially have to put up or shut up on legislation, because they now have the luxury of promising voters all sorts of policies that they know can’t pass because of the filibuster. But that seems to me to be a mythological conceit, because I could well imagine if Republicans got the majority without a filibuster, they could pass one of those exact bills that they threatened, that voters said, we want even though we kind of think you’re not going to actually get us. How willing are you to see that happen?
I’m obviously very willing. But I think you’re conflating two issues here. There’s a certain set of things — and this goes to your earlier question, Jane, about why didn’t Mitch McConnell get rid of the legislative filibuster? Because I don’t agree, actually — I’m going to defend Mitch McConnell here. I don’t agree, as many Democrats think, that if he got back into power tomorrow, he would get rid of the filibuster. And the reason he wouldn’t do it is he wanted his caucus to vote on Supreme Court nominees. They were united. It was an important priority. So he got rid of the filibuster, and they do it. He does not want his caucus to vote on everything that House Republicans pass, because a lot of it’s toxically unpopular. One of the problems with the filibuster right now is that it allows members of both parties to promise things to their publics that they know can’t happen, but they are able, instead of taking the blame for not delivering, to push it on to the other party. We didn’t do this because, oh, Mitch McConnell’s really mean, say the Democrats. We didn’t do this because Chuck Schumer is really mean, say that Republicans. And oftentimes, they didn’t do it because it wasn’t a good idea. And then to your other point, Jane, let’s say they did do it — let’s say they passed every bad idea they have, either side. That is how, in my view, the public gets to know which party they want to govern them. If one party comes in and does a bunch of terrible stuff in power, then they get voted out, then they lose. We have seen governing durable political majorities built in this country and lost in this country over governing success and failure. And that’s why, to me, the feedback loop of, you vote for people, they do the things they either promised or that they want to do, and then you judge them based on that measure is so important. You had the post-New Deal Democratic majority, which was sustained for a very long time, that emerged in part because people could see that the New Deal helped them. And you also had periods of time where Republicans have done much better because, in part, people saw Republican rule doing well. So it isn’t a bad thing, in my view, for parties to come in, pass things, and for the public to see how that works. If parties come in and pass terrible bills that the public hates, they’re going to get punished for that. And they should get punished for that. We don’t need to be protecting them from the consequences of their own ideas.
OK. First, I just want to make one correction for the record — the gentle lady from Maryland says — which is McConnell could have blown up the filibuster in 2017, and he didn’t. And so that is true. And we do need to remember that. He had a wider majority in the Senate than what is in the Senate today, a wider House majority, and a decent electoral margin for the president. They had what they felt was a mandate and an opportunity to pass huge reforms, and in many ways, felt like the legislative filibuster was in their way. They chose not to blow it up. Now, I think Ezra and I have different opinions as to why. Is the priority the judicial branch long-term, and that was going to be McConnell’s focus, and he didn’t want to put things on the floor? Or is that the second piece, which is what I think your comments there are tugging at, which is at the end of the day, if you have 51 votes, you have the ability to get your agenda passed if you hold the majority. It’s when your agenda becomes too extreme or so far out of the main line of the American people that it becomes much more difficult. So in a lot of ways, the filibuster begins to protect against those things that are most divisive. And again, that’s obviously in the eye of the beholder. Whether you saw Trump’s agenda as divisive or you see Biden’s agenda as divisive, it doesn’t matter. The point is the filibuster is what picks down right in the middle to protect against those things. And if you didn’t have that, and if you had this ability where every four years you basically had a restart for the country, it would be a yo-yo. Honestly, even if you just look at the first month — we’re a month into Biden — all he did the first two weeks was undo everything that Trump did, and he’s continuing to have to go back and undo it. So let’s be clear about the implications of big swings like this without any form of moderation, any form of in-between, compromise, or just guardrails to the system. And I think, Ezra, we should talk about reforms to the filibuster, because there’s a tangent there of, the paper filibuster — is that what really we’re upset about? Or if we forced everyone to go to the floor, would it make it a little bit better? Maybe. But I think the threat of the filibuster is what actually forces senators to come together, to have a compromise, which is the opposite of polarization, the opposite of the four-year yo-yo back and forth.
But wait, I do want to ask this as a clarification, because you’re saying the yo-yo is bad. Did Heritage Action oppose the effort to repeal Obamacare through budget reconciliation 51 votes? Was that something your operation opposed?
Heritage action at the time supported the repeal of Obamacare through budget reconciliation because of the impact of Obamacare on the fiscal side with the tax part, which is why we flipped it around.
Yeah, so you guys don’t — I just want to know this — I don’t have a problem with the yo-yo. I think if the public votes in somebody to undo what the other people did, that’s the way democracy can work. I don’t have a problem with that. But I just want to note that I don’t think anybody really has a problem with that. Your group supported that aggressively to try to undo the signature legislation of the Obama era. And I don’t, by the way, think Biden is going to undo most of the Trump tax cuts, because doing so would be unpopular. He might undo some at the upper end, but I don’t think he’ll do most of them. I think it’s important sometimes to ground this in the actual things that when they come up, do we support or oppose them? And I’ve watched a lot of Republican efforts to undo what Democrats did. I don’t think they’re unfair, but I don’t think Republicans think there was a problem with yo-yoing.
I would me also say that I dislike the yo-yo, because my firm view — which is why I think I’m sort of siding with Jessica, but I don’t trust either of you — is that giving people power and expecting them to be disciplined about it is completely insane. The majority of —
They’re disciplined by voters, though, not themselves. That’s the key. That’s how democracy works.
But the majority of voters — and I’m aware that I think I’m going to come out of this sounding like a monarchist — but a majority of voters are often extraordinarily wrong. We saw that with support for a constitutional ban on same-sex marriage, which had broad appeal of more than 59% back in 2004. We saw that with support for the Defense of Marriage Act back in 1996. We’ve seen it time, and time, and time again that sometimes the majority of voters are just wrong about things. But I want to jump us along, because Jessica just brought up the idea of potential modifications to the filibuster. And I want to get your thoughts — specifically start with you, Jessica. What are some modifications to the filibuster that you might be in favor of?
Can I just say one thing about what you just said? I don’t think the American people vote for yo-yo. I really, really don’t. I really don’t. It may be a tactical thing, but at the end of the day, I just can’t get there. But let’s talk about reforms. Some of the reforms I’ve looked at and would be open to the conversation on are, what do you do with the paper filibuster? So right now the way it’s set up, if a member just has the desire to signal their intent for a filibuster, they can do that through a paper filibuster. And that just simply triggers the need for a motion to invoke cloture at 60 votes. So this is why you don’t actually see the grandstanding of the senators holding the floor and speaking for hours on end to end filibuster. The threat is actually enough. So my friends in the Senate may kill me for this, because it would actually mean that members would have to go to the floor for hours upon hours and filibuster every single one of Biden’s proposals coming through — I do think that there’s an opportunity there to extend the debate. I think you can look at different ideas when it comes to how long the debate is — do you end up putting a cap on it? If you remember, when did Ted Cruz read Green eggs and ham? That was 2013?
And so if you look at what he did with that filibuster — so do you actually have a cap on the time somehow? Do you have a cap of the content? I think those are open questions. I’ve seen Democrat proposals where they’ve talked about reducing the filibuster to 55. Obviously, there’s been reductions in the filibuster before. But I think that becomes a question of, is it chipping away at the actual purpose of the filibuster? So while I think we can have a conversation about filibuster reforms, I think at the end of the day, it goes back to this principle of, is the filibuster broken? And as a key piece of the Senate, is that broken or not? And does it actually need to be fixed? My opinion, I think we need debate now more than ever. We don’t need quick and easy fixes. We don’t need quick and easy votes. I like the deliberation, I like the discussion. So I’m in favor of keeping the filibuster as it is with this goal of ensuring essential part of a strong system of checks and balances at a time when I think our country needs it.
What do you think, Ezra?
I want to get rid of the filibuster. My issue is the vote threshold. So things that don’t attach the vote threshold don’t actually fix my concern. But if you want to do things that were in the middle — so one of the issues with deliberation is that the side that does not actually tend to want the deliberation is the majority, because the deliberation question eats up a lot of time. And in addition to eating up a lot of time, the way the internal rules of the Senate work is you only need one member of the filibustering minority on the floor, but you need every member of the majority on the floor to try to break the filibuster, right? So if you’re going to take a cloture vote, you need 60 anti-filibuster players on the floor. So Norm Ornstein, who’s a congressional scholar, has an idea that you would flip that bias. Instead of 60 votes required to end debate, he argues that you should require 40 votes to continue it. So basically, that would make filibustering an endurance test for the filibustering minority, not for the anti-filibuster majority. I think that would be helpful. But again, I want to keep going back to what my position is on this, which is that I think majority votes are a good way to run an institution. But if you’re going to do something midway, I’d probably look at something like that.
Ezra, do you see a world in which Democrats would be able to pass their agenda through negotiations?
I don’t think the filibuster is primarily at this point used as a ideological check. I think it is used as a tool of party strategy. And so let me give an example here. The filibuster often stops bipartisan bills from passing. After the — I believe this was the Sandy Hook shootings — there was a moment in which there was a big push for gun control. And there were some, obviously, big, expansive liberal efforts at gun control. But Joe Manchin, the most moderate Democrat in the Senate, and Pat Toomey, one of the more moderate Republicans in the Senate, came together. And it was a very, very modest, very incremental package of gun control ideas — like background checks, and it wasn’t taking away anybody’s guns. It failed — it had bipartisan support, but not enough. Those ideas had something like 80% public support. And it died because of the filibuster. Similarly, a bill to protect Dreamers in the Obama era — and protecting Dreamers tends to get pretty good bipartisan support in polls — even folks like Donald Trump have said, in theory, they want to protect Dreamers — that bill failed. So it is just a fallacy to say the filibuster is only blocking extreme liberal ideas.
Jessica, I think that without the filibuster, you could potentially see a moment where you have Joe Biden and Mitt Romney shaking hands to pass this legislation that gives a lot of money to American families in the midst of a pandemic or enduring a year or more of crises. And I want to know from here that — I know that there is an ideological explanation for the support for the filibuster here, but is part of how conservatives and Republicans think about this is that they just don’t want Joe Biden to succeed here?
I don’t think that’s fair. I think at the end of the day, most reasonable people want to see their jobs and schools open back up. They want to see businesses actually be allowed to have customers, restaurants open. And so I think the pandemic is actually a bright spot in our legislative political history when we look back on it, because it’s bringing a lot of people together. I do wonder, though, to Ezra’s point on accountability — and it’s obviously something I care deeply about as well — but the Republican and Democrat senators that would have voted on what Ezra would view as the wrong side of a very popular guns bill at the time, did they come back? That would be interesting to go back and look, right? Because that’s been far enough away, we would have had a cycle since then. Did they get voted out because of their vote against a seemingly popular bill? And so I’d be curious if we’re looking specifically about the impact, and arguing that the filibuster limits the ability for voters to hold their members accountable because it’s not clear, and clean, and easily understood, I think we should look at that as an example. Because it can tell us, we might be able to learn something there.
My argument is not that senators lose re-election based on single votes, which would be a very unusual predicament. I don’t even think Ted Cruz is likely to lose an election because he left to go to Cancun while people in his state were freezing to death, because there’s going to be so much time in between when he did that and when he’s actually up for re-election. The Senate is designed to insulate its members from the effects of single votes.
Well, I think Ezra has unintentionally gotten us to where I’d like to finish our conversation — though, as much as I’d like to discuss trips to Cancun. This entire conversation is kind of about a disagreement about what the function of the Senate is. There’s the argument that the Senate is the cooling saucer of democracy — i.e. the place where stuff stops that you don’t want to happen. And I think that on both sides, there is an idea that the filibuster is part of this entire conceit, that the House is where you come up with legislation, and the Senate is where you say, actually, we really don’t want that to happen, because it seems like a bad idea. But I’d like to know what you both think of the function of the Senate — not whether or not it is functioning correctly right now, but is the function of the Senate to slow down legislation, to slow down this practice of legislating?
I think the function of the Senate is debate. And I think that it’s really important that the Senate and the House have different functions, and that we don’t try to create one gigantic uni-cam. And so I think where the House is quick, and fast, and there’s a hundred different bills that are being introduced today and tons of stuff coming out of committee, the Senate is slower, because it has time for much more thoughtful debate. And I think it’s a function of the Senate to have debate and to have that fully in front of the American people to the extent that they can stomach watching C-SPAN all day.
I think the role of the Senate is to — I mean, in a very literalistic way — balance the power of different states against each other. I think in broad respects, the role of a legislature is to consider and pass legislation, good legislation, and then alter it as time demands. And to the extent the Senate has strayed from the way it has worked over the majority of American history, which is to say, as a 51-vote institution, and to the extent that it is, as such, not as able to govern in a deliberate and functional way, I think that’s a problem. So I think the question of when you’re going into any issue of, what is the Senate meant to be, I think it is probably meant to be more like the way it has worked up until now. And we’re living in its aberrant period, and it’s time to end it.
This is a good wrapping up point, because I don’t think we’re going to be able to get you two to agree. And I don’t think I agree with either of you, because I am very concerned about majority power. I’m just distrustful. That’s just what I am now. But this has given me a ton to think about. And thank you both so much for joining. Ezra Klein, columnist at The New York Times, host of “The Ezra Klein Show,” thank you so much.
Jessica Anderson, Executive Director at Heritage Action for America, former OMB Associate Director during the Trump administration, thank you so much for coming on.
Thank you for having me. [MUSIC PLAYING]
If you want to go deeper on the filibuster and get to know things like cloture, I recommend Ezra Klein’s “Case for Eliminating the Filibuster,” published in October 2020 at Vox.com — also, his recent podcast episode with Adam Jentleson called, quote, “The Senate is Making a Mockery of Itself.” For the other side, check out Kevin Williamson’s defense of the filibuster from July 2020 over at National Review. And finally, do yourself a favor and spend some time this week listening to “Face to Face” by Daft Punk, one of my favorite French techno-groups that’s just announced that they’re disbanding. They found inspiration in producers like Giorgio Moroder and artists like George Clinton. And in turn, they inspired everyone, from Justice to Kanye West. They will be sorely missed.
“The Argument” is a production of New York Times opinion. It’s produced by Phoebe Lett, Elisa Gutierrez, and Vishakha Darbha, edited by Alison Bruzek and Paula Szuchman, with original music and sound design by Isaac Jones, and fact-checking by Kate Sinclair. Special thanks this week to Vicki Merrick. [MUSIC PLAYING]