One year since the insurrection at the Capitol, this January, Democrats rallied around passing a comprehensive voting rights reform bill by weakening the filibuster. The Freedom to Vote: John R. Lewis Act seemed poised to be enacted into law, supported by activists, state party leaders, passed by a vote in the U.S. House, and endorsed by the President of the United States. However, complications quickly arose in the U.S. Senate. A majority of senators, more than 50%, supported the bill but Senate rules stipulate that a supermajority, or 60% of the chamber, must agree to end debate through a cloture vote for any issue to proceed. The act of a minority of senators holding a bill in limbo, with enough support to pass, but not enough to break through the higher cloture requirements is known as a filibuster. In this case, minority-party Republicans employed the filibuster to temporarily block the passage of voting rights. Poised to move it forward even so, Democrats led by Senate Majority Leader Chuck Schumer (D-NY) forced a vote to weaken the filibuster itself, only to fail once again, to conservatives’ chagrin, when two moderate Democrats refused to agree.

The filibuster is a unique practice and frustration with it is not new, leading majority parties to weaken it over time, with the result of short-term benefits but long-term risk. The filibuster is unlike many other questions posed to our country. Its existence is not explicitly enshrined in our Constitution nor a particularly integral element to democracy itself. It is simply a norm or practice, built from the tradition of the U.S. Senate as a deliberative body, respectful to open debate and the rights of the minority party. The filibuster puts these ideas into practice, requiring a higher threshold to end discussions, debate, or negotiations on a topic, and giving minority parties the tools to block ideas. Despite the filibuster’s growing use since our formative years, its enforcement has always been by Senate rule, a type of order quickly editable by a simple majority decision. With business running stagnant in the face of Republican obstruction, Democratic presidents and legislative leaders have on numerous occasions and varying success moved to weaken the filibuster rule by exemption. In 1980, in an effort to streamline governance, Democrats passed the first major weakening of the filibuster, a new budget reconciliation process that excluded nearly all economic measures from blockade. More recently in 2013, Democrats frustrated with Republican obstruction, achieved the same for federal judicial nominees. On each occasion, while Democrats enjoyed unrestricted governance and hope for a more progressive agenda in the short term, in the long term these advantages quickly backfired once Republicans regained power. We can only question what backlash would ensue if Democrats weaken the filibuster again.

The first major weakening of the filibuster came in 1980, when Democrats exempted most budgetary matters from the filibuster, a tool used by conservatives for the next four decades. Since 1974, a scheme known as budget reconciliation has existed in U.S. Congress, intending to allow non-consequential deficit reductions to bypass the Senate without issue. But six years later, with its first implementation, infamous political gamemaker Senator Robert Byrd (D-WV) used the expedited procedure to pass the annual omnibus budget that directs U.S. government’s major investments for the fiscal year. 

Over the next 13 years, Byrd, with the help of Republican presidents solidified reconciliation under a list of guidelines known as the “Byrd Rule.” Meanwhile, Republicans started to take full advantage of the Democrats’ creation. In his first year as president, Reagan guided through his signature 1981 budget using reconciliation, teaming up Republicans with sympathetic southern Democrats to “increase defense spending,” slash all other spending, and “cut taxes.” A report from University of California, Berkeley describes how the law sparked the nation’s debt crisis that continues to this day. Reagan continued to pass one major reconciliation package for each of his 8 years in office, leaving his permanent mark on the U.S. economy and debt. His successor, George H.W. Bush, would continue his legacy to less success. In Bush’s first year, he used reconciliation to raise taxes and quell the debt Reagan had created. This decision famously broke his promise to cut taxes, costing him re-election. If the filibuster had still applied to these bills, our national debt and Bush’s re-election may have been saved.

From 1994 to the present day, the reconciliation process Democrats invented was again used to overwhelmingly advance conservative policies, mostly tax cuts. In 1996, President Clinton, moderate Democrats, and Republicans passed a major overhaul and cut to the U.S. welfare system through reconciliation, allowing states their own latitude over welfare restrictions (like drug testing for the ‘War on Drugs’) and notably mandating recipients maintain employment. A 2002 report by EPI claims that the bill did reduce unemployment, but it failed to improve a person’s chance of escaping poverty while the number of people on welfare dropped 60%. Over Clinton’s eight years in office, he would again use reconciliation to cut Medicare and pass tax cuts for the wealthy. For the subsequent two decades, cutting taxes for the wealthy and corporations became a recurring theme of reconciliation. In 2001 and 2003, the Bush Administration passed the Bush tax cuts, a series of reconciliation laws that “did not improve economic growth or pay for themselves,” as promised, “but instead ballooned deficits and debt and contributed to a rise in income inequality.” A decade later, President Trump would use the same tactics to pass the Tax Cuts & Jobs Act of 2017, a massive handout to corporations and the topic of the 2019 piece entitled The TCJA 2 Years Later: Corporations, Not Workers, Are the Big Winners. 

Back in 1980, Democrats led by Senator Byrd invented a loophole to the filibuster that conservatives would take great advantages of for the next three decades, passing numerous increasing defense spending, decrease spending for everything else, cutting welfare with no effect, and cutting taxes for the rich and powerful. Meanwhile, in a 30-year span, Democrats can only name two major accomplishments passed by reconciliation, ObamaCare and Coronavirus relief. But even then, while ObamaCare passed with 59 votes in the U.S. Senate, one vote shy of a supermajority, it was nearly repealed in 2018 by just one vote by Trump and other Republicans. If the filibuster had never been weakened by reconciliation at all, albeit a slightly scaled back ObamaCare (to account for the one more vote needed), would have never been at risk at all. 

The second major weakening of the filibuster came quite recently in 2013, when the Obama Administration endorsed a scheme by Senate Leader Harry Reid (D-NV) to exempt federal judicial nominees from the filibuster, only for it to yet again backfire. When Trump took office in 2017, he immediately used the procedure to confirm a record number of loyalist judicial nominees and extend its privileges to U.S. Supreme Court picks. This second option allowed him to confirm Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court, the first three such nominees in U.S. history to receive less than 60 votes in the U.S. Senate to be confirmed. Through this Democratic-created loophole to the filibuster, Trump was able to systemically mark the U.S. judicial system with his legacy for a lifetime as Democrats stood defenseless.

Despite the filibuster’s legacy of reducing government control, increases in defense spending, cuts to welfare that don’t improve welfare, cuts to Medicare, Trump’s judicial nominees, and numerous tax cuts, Democrats maintain increasingly poised to repeal or severely weaken the filibuster. Many argue that the filibuster itself has a bad, even racist legacy, and thus must go. Others argue that trashing the filibuster will allow a more progressive agenda to flourish. Still others say it is vital to break gridlock and restore America as a democracy. These arguments are not new, they have occurred over our nation’s history and at each crossroad where the filibuster was weakened. The above should show you that the filibuster is a dynamic, double-edged sword that has struck back at its reformers on numerous occasions. One can say the filibuster has been used by racists, it has, but weakening it empowered Trump’s judicial strategy and three Supreme Court picks that will reform policy for decades. One can say the filibuster has stopped the Green New Deal from passage, but weakening it has cut Medicare, welfare, and given handouts to the rich for generations. One could still say the filibuster is absolutely necessary to ensure voting rights, but does weakening it protect voting rights? Does weakening the filibuster stop the Republicans from reversing anything the Democrats do? Did it stop threats on ObamaCare? America has deep rooted problems, income inequality, political partisanship, a ballooning national debt crisis, and racial tension. Do we know how to solve these issues? Not yet. But the filibuster is but a symptom to larger problems its abolition will not solve.