With major democracy reform legislation headed to the Senate, the fight over the filibuster is taking center stage. On Tuesday, Senate Minority Leader Mitch McConnell, R-Ky., fired a warning shot with the threat of a "scorched-earth Senate" if Democrats were to eliminate the filibuster.
Republicans are increasingly open about the cold logic of what they're attempting: The harder it is for Democratic votes to count, the more likely Republicans are to win.
The filibuster, a long-standing Senate tradition that allows 41 of the Senate's 100 members to prevent a bill from coming up for a vote, is the target because the odds of reaching the 60-vote threshold to pass the For the People Act are about as remote as Alpha Centauri. Reflecting the views of many Democrats who want to remove this procedural step, Senate Majority Whip Dick Durbin, D-Ill., called the filibuster a "weapon of mass obstruction."
But Republicans like McConnell, now in the minority, see it as the only way to ensure that they have a say in lawmaking while the White House and the House are also in Democratic hands. Hence his warnings from the Senate floor that he would grind the chamber's legislative business to a halt: "The Senate would be more like a 100-car pileup, nothing moving."
Trying to find a middle ground, several members of Congress and commentators have floated an intriguing proposition: a "democracy exception" to the filibuster. That is, instead of eliminating the filibuster, should senators at least consider setting it aside for legislation protecting our democracy and the right to vote, as embodied in the For the People Act?
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The answer should be a resounding yes. The Senate has carved out plenty of other filibuster exceptions for special concerns, like judicial nominees and budgetary bills, which are now decided by simple majority votes. And what could be more special than the very foundation of our entire system of government?
The long-standing argument for maintaining the filibuster is that it encourages bipartisan compromise, the kind that ensures better and more sustainable legislation, because that legislation is more moderate and has more buy-in across the political spectrum. But right now, our democracy is collapsing into a crisis of escalating battles over who can vote, where, when and how, undermining the basic legitimacy of our entire system, while bipartisanship is going the way of the western black rhinoceros.
Indeed, bipartisanship over election rules is rational only when the rules of elections for each party's representatives are stable, fair and in line with basic constitutional principles of democracy that treat all voters equally, regardless of their partisan affiliations or the color of their skin. Bipartisanship becomes irrational when these fundamental principles of democracy are contested and all politics is subsumed to bitter trench warfare over narrow majority control.
Context here is everything. We are barely two months out from a violent mob attack on the U.S. Capitol, supported by the then-president, who had spent months falsely claiming that the 2020 election was "stolen" from him.
Now, motivated by this Big Lie, Republican-controlled states are moving aggressively to change the basic rules of democracy with the increasingly explicit purpose of making it harder for Democrats to win and for people of color who support Democrats to exercise the right to vote.
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In Texas, for example, GOP lawmakers are proposing to close polling places earlier, to make it harder to vote by mail and to eliminate mass voting sites, which many Democrats avail themselves of. In Georgia, Republican legislation would restrict weekend voting and mail voting, again targeting methods used disproportionately by Democrats. And Republicans are expected to gain a big boost in the 2022 congressional elections in part by redrawing district lines in Texas, Florida, Georgia and several other states.
If they succeed, Republicans could regularly win control of the House, the Senate and the presidency for at least a decade, if not longer, despite Democrats' winning more votes nationwide for all three offices. Extended minority rule is the most dangerous kind of tyranny.
Liberal democracy is a fragile agreement, because it depends on the legitimacy of elections that all competing parties can agree are fair. Or, more specifically, that winning parties don't abuse their victories to make it impossible for their opponents to ever win and that losing parties accept the results and compete again in the next election through the ballot box rather than reject them through the barrel of a gun.
The existential danger here is that elected Republicans are now violating both precepts: abusing their power wildly in the states they control through efforts like limiting voting and aggressive gerrymandering, while tacitly (and sometimes explicitly) supporting violent rhetoric when they lose, calls that are clearly resonating with some Republican voters.
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If this isn't a screeching code red for American democracy, it's hard to imagine what would be. Enter the For the People Act, the democracy reform bill that passed the House this month and now heads to the Senate. By laying down strong national baselines on voting rights and mandating independent redistricting commissions, the legislation would eliminate the kinds of democracy rollbacks state-level Republicans are contemplating, applying the brakes to the mad rush to rig the vote.
In theory, it should be a no-brainer to pass a bill that sets fair and equal standards for voting across all 50 states, makes sure all voters count equally and requires independent redistricting commissions to delineate congressional districts to eliminate partisan gerrymandering.
But in practice, democracy reform has become a deeply partisan exercise. A Republican president has won the popular vote only once in the last 28 years (2004), and Republican senators have represented a majority of Americans only once in the last 40 years (1996-97). Republicans have increasingly pegged their political future to aggressive partisan gerrymandering and targeted voting restrictions, backed by a permissive Supreme Court with a 6-3 conservative majority.
Republicans are increasingly open about the cold logic of what they're attempting: The harder it is for Democratic votes to count, the more likely Republicans are to win. Michael Carvin, a lawyer defending Arizona voting restrictions, recently responded to a question by the Supreme Court about voting access by saying: "It puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game."
Bipartisanship may be a nice goal, but bipartisanship is irrelevant when democracy vanishes.
So how do you solve this kind of zero-sum problem while maintaining a voting rule — the filibuster — that's supposed to encourage compromise? Maybe you can't. Maybe there are certain principles that are too important, too essential, to allow a minority to hold them hostage.
In normal times, policy debates are reasonable and frequently multidimensional disputes over competing priorities or differing models of how the economy works, disputes that can benefit from compromises that require building large majorities and that don't themselves undermine the potential for future elections. But the current fight over the rules of democracy isn't one. It is simply too foundational.
Hence the clear case for a democracy exemption from the filibuster. Democracy really is special. Without fair and equal standards for elections, no other compromise can be legitimate. Without voting rules that treat every voter equally, all other processes are built on sand. Bipartisanship may be a nice goal, but bipartisanship is irrelevant when democracy vanishes.