Democrats face a tough dilemma on Capitol Hill. Though they control Congress and the presidency, the Senate’s filibuster rules limit their ability to pass a progressive agenda. While Democrats have undertaken an extensive campaign against these rules, this campaign itself is unlikely to kill the filibuster. But by simply calling for the filibuster’s end, Democrats have already doomed it.
With Democrats’ Senate majority resting on a single tie-breaking vote, President Biden’s expansive agenda faces tough tests in the upper chamber. It’s unclear whether his current infrastructure proposal can pass, while progressive healthcare and environmental reforms are sure to be met with far more strenuous opposition from Republicans. To make things even tougher, Senate rules allow any senator to delay bills by declaring their intention to continue debate indefinitely—a procedure called the filibuster.
These filibuster rules require 60 votes to end debate, effectively preventing bills below that threshold from passing. As the Senate has grown more polarized, use of the filibuster has increased dramatically since 2007 and reached an all-time high in the last Congress. As a result, almost all bills functionally need at least 60 votes to pass, requiring bipartisan support.
Democrats realize that President Biden’s agenda doesn’t have the 60 votes to pass the Senate, so they see scrapping the filibuster as their only hope of passing progressive legislation. Their entire gambit is deeply misguided, since removing the filibuster would only accentuate partisanship in the Senate by removing any checks on the majority. But Democrats have also made a fatal miscalculation—their premature public campaign against the filibuster increases the likelihood that Republicans will kill it first.
At first glance, a public pressure campaign against the filibuster makes sense. Democrats are trying to coerce Republicans into submission, or at least retreat, on some progressive priorities. It’s a tactic with a history of success that FDR once employed against the Supreme Court, threatening to add 6 new justices when the Court ruled against New Deal programs. Though the proposal itself never gained much traction, the mere threat of court-packing may have sparked a sudden ideological flip-flop from Justice Owen Roberts.
However, Democrats’ public campaigning is poorly suited for the modern Senate. Senators’ political survival often depends on their ability to toe the party line, so Republicans will loudly and vigorously oppose the Biden agenda with or without threats against the filibuster. Threatening the filibuster won’t change Republican behavior, but it does show Republicans that Democrats will resort to any and all tactics to pass their agenda.
Even more concerning for Democrats, they simply don’t have the votes to kill or even change the filibuster, thanks to resistance from two moderate Democratic senators: West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema. Removing the filibuster will jeopardize their careers if Democrats expand their majority, so campaigning against it won’t persuade either senator. Both will likely face competitive re-election races, and the partisan legislation we’d see from a filibuster-free Senate could make those races far tougher. Democrats simply don’t have the votes to kill the filibuster, and they almost certainly won’t persuade Manchin or Sinema.
The success of Democrats’ current approach thus depends on their ability to keep the House and expand their Senate majority while they control the White House. That’s a dubious proposition, since the president’s party almost always does poorly in midterms, and Republicans need to pick up only a few seats to take the majority in both the House and Senate. After 2022, Republicans could easily have total control of government before Democrats do.
Democrats have played their hand. Republicans now know that they’ll eliminate the filibuster to pass their agenda. So, what are Republicans’ options? Here, some rudimentary game theory can explain why Democrats’ pressure campaign is so disastrous.
Let’s start with some basic parameters. At different times, each party controls the Senate and can kill the filibuster. Since Democrats currently lack the votes, the game begins after the midterms. One party acts first. They have the choice to scrap or keep the filibuster. If they choose to keep it, the other party then has the same choice. If they choose to kill it, the filibuster is gone and the game is over. In this game, there are three possible outcomes: The filibuster survives, Republicans kill it, or Democrats kill it. Senate Democrats have made it clear that they prefer to kill it.
That’s because Democrats want to fundamentally transform America; they see their policies as urgent and our crises as existential. Achieving their vision of reinventing our economy requires substantial partisan legislation, which the filibuster blocks. However, they’d surely prefer the filibuster’s survival to a Republican Senate removing the filibuster and passing an avalanche of conservative legislation.
Republican preferences are a bit different; they prioritize the filibuster’s survival since it allows them to check a Democratic majority by blocking progressive legislation. Their own more limited approach to legislating means the filibuster doesn’t really harm the Republican agenda while allowing Republicans to check sweeping progressive legislation. As a secondary option, Republicans prefer to scrap the filibuster themselves since this would allow them to enact a conservative agenda before Democrats enact a progressive one.
If Democrats expand their majorities in Congress after the midterms, they can achieve their optimal outcome by scrapping the filibuster and passing progressive legislation. But if they fail to do so, Republicans may have a chance to kill the filibuster first. If that’s the case, Democrats’ campaign against the filibuster could influence Republican decision-making for the worse.
Republicans might want to keep the filibuster, but they know that Democrats will scrap it when their turn eventually comes. So keeping the filibuster leads to Republicans’ worst possible outcome; it allows Democrats to scrap the filibuster first and pass progressive legislation. Republicans’ optimal outcome, where both parties keep the filibuster, isn’t on the table since Democrats won’t live up to their end of the bargain. Republicans thus face an easy choice between a middle-ground and worst-case scenario. Their only viable option is to pre-emptively kill the filibuster themselves so they can pass conservative legislation while they control the Senate. Remember, Republicans only make this choice because they know Democrats will kill the filibuster. Without that knowledge, their choices are quite different.
Even an ambiguous Democratic position on the filibuster endangers it. In that case, Republicans choose between a middle-ground option in killing the filibuster or a tossup between their best and worst outcomes in saving it. It’s anyone’s guess what choice they make. Public uncertainty is therefore a risky stance for Democrats. On the other hand, Republicans have no reason to kill the filibuster if they trust Democrats will preserve it. In this case, where Democratic preferences now match Republican preferences, both parties prefer to keep the filibuster and their decisions reflect that. Importantly, this scenario spares both parties from their worst outcomes.
Democrats’ current course increases the likelihood of an avoidable disaster. Were Democrats to stay silent on the filibuster, Republicans would certainly leave it alone. But Democrats have changed the Republican calculus by campaigning against the filibuster. Republican decision-making depends on what Democrats decide, and, by tipping their hand, Democrats are pushing Republicans toward a dangerous choice.
It’s one thing to talk about the filibuster in the abstract context of game theory, but what would a Republican Congress look like without the filibuster? Mitch McConnell has warned of a “scorched-earth Senate” where Republicans could defund Planned Parenthood. In addition, Republicans could pass transgender sports bans, restrictive abortion laws, and federal election bills that resemble Georgia’s new voting law. Needless to say, that’s a doomsday scenario for Democrats. Unfortunately, their current campaign makes that outcome more likely, which is why they need to pump the brakes.
Given all this, Democrats should recommit to the filibuster. As I’ve previously argued, preserving the filibuster serves the country’s best interests by checking dangerously partisan legislation. There’s a good reason many Democrats, including President Biden, have defended the filibuster in the past. It’s a vital protection for the Senate’s minority and limits the upper chamber’s partisan bent. But even if this logic doesn’t sway Democrats, pure self-interest should convince them to publicly recommit to the filibuster. Republicans won’t kill the filibuster if they believe Democrats won’t. A recommitment could head off Republican attempts to kill the filibuster, and it would also allow Democrats to cynically achieve their optimal result. Either way, Democrats should support the filibuster for now.
Democrats’ filibuster brinkmanship has brought them to the verge of catastrophe, something that few if any Democrats have publicly acknowledged. Castigating the filibuster fires up progressives, so I don’t expect Democrats will change their tune anytime soon. But they should, because their ill-advised strategy could lead Republicans to kill the filibuster first. Words have consequences, especially without votes backing them up. Democrats could soon learn that the hard way.
