Respect and disrespect for democratic institutions
Question: What is the holy grail of democracy?
Answer: Free and fair elections.
At least, that’s the answer I would give. Free and fair elections, where the losers accept defeat.
According to West Virginia Senator Joe Manchin, the holy grail of democracy is the filibuster rule in the Senate that requires a 60-vote supermajority to pass bills instead of a simple majority vote of 51.
Arizona Senator Kyrsten Sinema seems to agree with Manchin. Sinema has been quiet about the choice Americans face in the upcoming presidential election, but she did find her voice to chastise Kamala Harris for wanting to pass laws with a simple majority vote in the Senate. Sinema posted on social media,
To state the supremely obvious, eliminating the filibuster to codify Roe v. Wade also enables a future Congress to ban all abortion nationwide. What an absolutely terrible, shortsighted idea.
A couple days later on social media, Sinema attacked a media outlet for a story that quoted Democratic senators sharing reservations about eliminating the filibuster rule. Sinema said the story was “ridiculously absurd,” arguing it should have noted that these senators have a record of voting to get rid of the filibuster. “This is not a ‘what if’ scenario,” Sinema wrote. “We are all already on record on this question. You can’t rewrite history.”
Fair enough.
Sinema believes the filibuster is important. She paid a price for voting “no” on getting rid of the filibuster rule. Some of her Democratic colleagues probably agreed with her in private, but used her as a political shield, voting “yes” to keep the party happy while letting her catch the arrows.
I don’t blame Manchin or Sinema for standing up for what they think is right.
It should be noted, however, that reasonable people disagree with Manchin and Sinema about the importance of the filibuster rule.
Does the filibuster rule actually encourage bipartisanship and national unity? Would eliminating the filibuster rule lead to lawmaking chaos?
Jonathan Chait, a center-left columnist for New York Magazine, thinks the government would be perfectly fine without the filibuster rule:
If a supermajority requirement to pass legislation were a crucial feature of democratic governments, all 50 state governments, not to mention virtually every foreign government we typically think of as democratic, would be nondemocratic. None of these governments decided to include a filibuster in their design. Indeed, the Founders also chose not to include a supermajority requirement in their legislative design.
The Senate was designed to be the “upper chamber” of the Congress, and there are elements of this design that remain intact. Senators serve a six-year term, so they are able to think and act in ways that go beyond immediate political circumstances. Every election cycle, only a third of senators are up for election, so they cannot be swapped out rashly like the House of Representatives. Senators represent an entire state, which expands their purview, and there are only two senators per state, which elevates the stature of individual senators.
Originally, senators were selected by state legislators, not by voters directly. This design feature further distinguished the Senate as being a “check” on the passions of the people. The 17th amendment, ratified in 1913, established direct elections for senators.
The Constitution does not specify the amount of time senators are allowed to debate an issue. At first, a filibuster was when someone took the floor and kept talking endlessly as a stall tactic. There was no way to force an end to debate until 1917, when they added a mechanism for a “cloture” vote to end debate. A cloture vote requires a supermajority.
Eventually, the filibuster turned into a rule that says you need a supermajority vote to pass a bill. The Constitution still says you need a simple majority.
Jonathan Chait notes that the filibuster “only became a routine supermajority requirement in the 1990s. Before then, large contested legislation usually passed on a majority basis.”
Yes, it's true that, without the filibuster, if Democrats won a majority in the House and Senate, as well as the White House, and got all their members to agree on something, they would be able to pass a law.
And, without the filibuster, Republicans would be able to do the same in reverse.
Isn’t that how it’s supposed to work?
Granted, it would disrupt the structure of the system if Democrats changed federal voting laws, or if they tried to change the rules of the Supreme Court, or if they added Puerto Rico and Washington D.C. as states.
If more Democratic senators had vocally supported the centrism of Sinema and Manchin, fewer voters would be worried about a left-wing power grab.
In any case, we probably won’t find out what Democrats would do with unified control of the government, because the odds are pretty good that Republicans will win back the Senate in November.
While Democrats are threatening to pass laws with a majority of senators, Republicans are threatening to outright refuse to accept the outcome of an election. Again.
Conservative writer Andrew Sullivan is concerned about norm breaking by the left, but he sees a bigger picture:
Trump does not merely break norms. He has broken the norm, the indispensable norm for the continuation of the republic, the norm first set by George Washington when he retired from office, the norm that changed the entire world for the better: accepting the results of an election.
Everybody knows how the MAGA establishment of the Republican Party would react to a Harris victory.
How would Democrats react to a Trump victory?
At a McCain Institute forum this past May, Senator Sinema spoke to Washington Post reporter Yvonne Wingett Sanchez about the aftermath of the 2024 election. Sinema was worried about both sides:
I’m concerned about what happens in November, regardless of which candidate wins. I believe there will be a swell of movement by either extreme to seek to invalidate or degrade or denigrate the outcome of the election. I think we should prepare for that. I’m concerned about that.
Sinema is right to be concerned about the outcome either way, although I disagree with her detached non-partisanship on this issue. Between the two candidates running for president this year, only one of them has a record of trying to stay in power after losing an election.
Question: How can we avoid worst case scenarios for our republic, this year and into the future?
Answer: I don’t know, but I would like to hear more on this topic from our senior senator.
Protect the filibuster, sure. I get it.
But shoring up respect for our elections is essential in a way that the filibuster rule is not.
When the 2000 presidential election was decided by one vote in the Supreme Court did Democrats go to the Capitol and try to overthrow the government? Unthinkable. When President Obama was was elected and a seat on the Supreme Court was open who took that absolute right away? Republican Mitch McConnell. And then the Amy Coney Barrett thing which was so…I really have no words for the ugliness that brought to our politics. I don’t trust MAGA’s as far as I can throw them and I truly believed that Democrats would lose support if they acted as Republicans have in the last 25 years. Get rid of the electoral college. That brings free and fair elections. I have changed my mind on that issue as I think that will stop the polarization all these shenanigans have caused.
I think, yet again, you have landed where reality lives, Billy. Extreme dependence on the filibuster is admission that we don't trust ourselves and the hard won struggle to improve the governance institutions and norms we depend on for principled leadership. Artificial workarounds are still...artificial and offer no assurance of reasoned outcomes. At some point, we are going to have to accept that reality and engage in actual problem solving through compromise based on accurate understanding of the issues rather than revolving character assassination.
It is anything but easy, as we know. The case you make reminds that rights and freedoms, absent responsible behavior, constitute license. Constructive governance cannot function on fuel like that.