FILIBUSTER

I know I’m jumping the gun and may have to eat crow and retract my prediction, but today I’m confident enough in a Biden victory on November 3, that I shift to looking ahead at the realities that will face the Biden administration in his first (and likely only) term in office. After all, it would take more than a miracle to see the incumbent surviving (figuratively speaking) the NYT revelations on his federal income tax returns, his boorish behavior during the first presidential election debate, his own affliction by the virus that he has poo pooed from the start, all resulting in a 14-point deficit in yesterday’s NBC/WSJ poll. The authoritative election forecasting site FiveThirtyEight gives the incumbent only a 18% chance to come out victoriously.

When thinking about the weight of the responsibilities of the office of the President of the United States, we always wonder: “who would want this job”? Now more than ever. In the conclusion of their recently released book “After Trump, Reconstructing the Presidency”, Bob Bauer and Jack Goldsmith point out that “If the new president takes office in 2021, the nation will face one of the most difficult times in its history.”

The nation will come out of a bruising election campaign, following a most destructive and polarizing Trump presidency. Bauer and Goldsmith contend that “The country will still be coping with a persistent global pandemic and, in addition, it will be struggling with vast economic dislocation, searing national debates about racial injustice, immigration, voting rights, and a deeply polarized political culture.” To that, we should add the extreme inequalities, painfully exposed by the disproportional burden inflicted by the corona virus upon the least fortunate amongst us, both in physical, emotional, and economic terms. As before, these ‘least fortunate’ include first and foremost our racial minorities. Such are the conditions facing the incoming administration on January 20, 2021. And the job will almost certainly fall in the lap of a 77-year-old career politician with not a great problem-solving record.

The dilemma for 2021, and the next administration, is the juxtaposition of the outsize scope and depth of the issues facing the nation and the record level of political polarization. The history of the Obama and Trump administrations shows that only at a time that Congress and the White House are controlled by the same party a major legislative initiative has a chance of passing and becoming law, and so only if it can pass as a measure of ‘budget reconciliation’, which requires only a simple majority in the Senate. This is the way the Affordable Care Act passed in Obama’s second year (before Republicans took control of the Senate) and the Trump tax law passed in Trump’s first year (before Democrats took control of the House of Representatives).

There is a better than even likelihood that, come January 20, 2021, the White House and both chambers of Congress are again controlled by the same party, this time the Democrats. But the matters most in need of legislative action, such as voting rights, immigration, climate change, healthcare, gun control, and the national debt, cannot be addressed by ‘budget reconciliation’ and will, therefore, under the existing rules require 60 votes to come up for debate and a vote in the Senate (the ‘filibuster rule’). We can safely rule out any chance that the Democrats could win the 13 Senate seats required to gain this filibuster proof majority for 2021 (as much as it is unlikely for either party to attain the 60-seat majority at any time in the foreseeable future in a 100 seat Senate). Thus, to govern effectively, Biden’s choice will be to find compromise solutions, for which he can obtain some Republican support, or to throw the ‘filibuster rule’ out of the window.

Even if the Democrats gain a majority in the Senate, chances are that they will still have to contend with Mitch McConnell (then as minority-leader), who has demonstrated to be a masterful tactician in keeping whatever control he has over the process. McConnell will be more than capable to string any talk of bipartisanship along until the midterm elections of 2022, betting that a lack of legislative success of the Biden administration may switch control of Congress again in the GOP favor. He has a record of allowing individual GOP Senators to engage in talks and negotiations with Democratic counterparts, without ever allowing them to bring their proposals to the floor of the Senate for a vote. Such maneuvering will put Biden under immense pressure from his party and public opinion to produce meaningful results in his first two years and before the next mid-term elections. And it may lead him to the conclusion that the only way for him to achieve results is by finalizing the process, started by Harry Reid, and continued by Mitch McConnell, of peeling the onion of the ‘filibuster rule’ and eliminating the qualified majority required in the Senate to advance legislation.

For good reasons, this choice facing the new president is dubbed the ‘nuclear option’. It will blow up the last remaining norm that sets the Senate apart from the House. It will be a choice with fateful, unpredictable, consequences for the future of our system of government. Biden will have to consider ‘what happens when the shoe fits the other foot and Republicans again gain control of Congress’.

On the other hand, he will be tempted to accept the risk involved in breaking with norms and traditions (including the risk of being chased out of office and/or lose control of Congress) for the chance of pushing through wholesale legislative initiatives, which have no chance of passing with the ‘filibuster rule’ in place, and could include offering Statehood to Washington D.C. and Puerto Rico and expanding the number of Justices on the Supreme Court (to compensate for Trump’s insistence on filling the Ruth Bader Ginsburg seat with a conservative nominee). Statehood for D.C. and Puerto Rico would add four reliably Democratic seats to the Senate, putting a Republican Senate majority out of reach for a long time. 

Biden has, so far, steadfastly refused to answer any questions on how he might decide this matter, if he gets elected. Understandably so. To do differently, regardless of which way he would go, could easily cost him the election. Most likely he has not made any decision in this respect and will want to see what happens on November 3 and then after January 20, 2021. Will the GOP, after a resounding and humiliating defeat at the polls, be more or less willing to work with the Biden administration on addressing the nation’s most dire problems?

It would be better for our democracy if we can keep the ‘filibuster rule’ in place. The main purpose of the rule is to make sure that the Senate is a deliberative body that invites the majority to find accommodation with the minority by means of dialogue and compromise. Unfortunately, not much of that has worked under the leadership of the last two majority leaders, Harry Reid and Mitch McConnell. Are we holding on to a pipe dream?

If the ‘filibuster rule’ falls by the wayside and the Senate is expanded with representatives of D.C. and Puerto Rico, there will be little rationale left for the bicameral system of our legislative branch. And the Electoral College would likely be next to be put in question (though getting rid of that will require a Constitutional Amendment). It will fundamentally and permanently alter the unique system of representative democracy put in place by the founders of the republic. We should think long and hard before embarking on that course.

Biden, and the Democrats at large, should preferably take the long-term view and consider that the demographics of our nation are trending inexorably in their favor. This reality is one of the reasons why the GOP is so focused on voter suppression.

The conclusion is that negotiations on a new voting rights bill should be a high priority for the incoming administration. They would serve as a barometer of the GOP willingness to reach across the aisle and work with the Biden administration and the Democrats on addressing the nation’s needs. If the Republicans decide for intransigency, God help us, it will leave Biden little choice but to pull the trigger and kill the ‘filibuster rule’. He will then be held accountable for toppling another monument of the glorious republic founded in 1776. But the real culprit will be our two-party stalemate and the immutable partisanship blocking the art and science of governing.