The current debate over whether to reform the filibuster in the U.S. Senate has profound implications for the strength of American democracy. The filibuster, a procedural rule which allows any senator to block the passage of legislation that does not have supermajority support, has recently become a target of Democrats who believe it is a roadblock preventing the passage of President Biden’s agenda. Before giving in to their temptations, however, Democrats should consider the potential for further democratic erosion if they eliminate or weaken the filibuster.
Weakening the filibuster would contribute to democratic erosion for two reasons. First, it would undermine the basic norm of forbearance, which dictates that “politicians should exercise restraint in deploying their institutional prerogatives.” While some Democrats wish to take advantage of their unified control of government before the party’s narrow legislative majorities are put at risk in this year’s midterm elections, weakening the filibuster to pass an aggressive agenda would erode the guardrails of American democracy for partisan gain.
Second, weakening the filibuster would remove a check against future would-be authoritarian executives. This is especially true in an era where partisan polarization makes legislative majorities less likely to restrain the authoritarian impulses of presidents from their party. Proponents of filibuster reform may be correct that the Senate’s supermajority requirement is somewhat undemocratic. Moreover, Democrats may intend to use their legislative power to strengthen democracy by passing voting rights protections, for example. Nevertheless, eliminating the filibuster now would remove Democrats’ recourse against un-democratic legislation when the GOP retakes control of the government. A Republican president would be able to easily reverse any new federal voting rights protections, rendering Democrats’ efforts moot. Because Republicans have a structural advantage in the U.S. Senate and electoral college, the long-term harms of eliminating the filibuster likely outweigh any short-term gains for Democrats.
Moreover, should a future president with authoritarian tendencies take power with unified control of government, the absence of a filibuster would make it easier to pass un-democratic legislation that limits the freedom of the press, increases executive power, etc. Given the record number of filibusters that were used to stymie the most dangerous aspects of the Trump agenda, Democrats should be fully aware of the role that the filibuster plays in slowing the rate of democratic erosion.
Some advocates for reform argue that Democrats can strike a middle ground by preserving most of the legislative filibuster but creating a carve-out to allow voting rights protections to be passed with simple majority support. In fact, Biden has come out in support of this rule change, which recently fell two votes short of being adopted by the Senate. A carve out would likely be exploited by future Senate majorities, however, who may similarly try to create exemptions for what they perceive to be important legislation.
This has historical precedent: in 2017, Senate Republicans triggered the “nuclear option” to allow Supreme Court nominees to be confirmed with only 51 votes instead of the previous 60 vote threshold. Then-Senate Majority Leader Mitch McConnell justified this action by pointing to Democrats’ elimination of the judicial filibuster for lower-court nominees in 2013. Consequently, Trump was able to appoint 3 Supreme Court justices and over 220 lower-court nominees, many of whom were unqualified, without needing the support of any Democratic senators. Therefore, the “carve-out” approach is unlikely to adequately protect the filibuster’s integrity.
Finally, perhaps the strongest objection to my argument is that even if Democrats do not weaken the filibuster, would-be authoritarians will simply eliminate it once they gain unified control of government. After all, since the filibuster can be altered with simple majority support, it is unlikely to be a bulwark against future democratic erosion when would-be authoritarians truly wish to eliminate checks on their power.
Although it is true that future leaders could easily tamper with the filibuster for nefarious purposes, refraining from weakening the filibuster now would decrease the legitimacy of future erosion. If Democrats weakened the filibuster, a would-be authoritarian could use that reform as a justification to violate other norms, similar to how McConnell pointed to Democrats’ removal of the judicial filibuster to justify using the “nuclear option”. Preserving the filibuster’s integrity now will make clear to future voters that a would-be authoritarian’s attempt to remove minority protections would be un-democratic and purely for partisan gain.
In conclusion, despite the temptation to weaken the filibuster to achieve short-term political gains, Democrats should leave the procedural rule intact. Instead, Democrats should focus on passing legislation that strengthens democracy and has the potential to gain strong bipartisan support. Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).  Robert Lieberman, Suzanne Mettler, Thomas Pepinsky, Kenneth Roberts and Richard Valelly, “The Trump Presidency and American Democracy: A Historical and Comparative Analysis,” Perspectives on Politics (October 2018): 1-10.  Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2018).