Killing the filibuster.
Plus, a question about Andrew Yang.
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Today’s read: 10 minutes.
Abolishing the filibuster. Plus, a question about Andrew Yang.
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Quick hits.
All but five Senate Republicans voted to throw out the impeachment trial against Donald Trump yesterday on the basis he’s already out of office. The Senate fell short of ending the trial, but the vote indicates how unlikely it is he will be convicted. (CBS News)
Democrats introduced legislation to raise the federal minimum wage to $15 yesterday, and Sen. Bernie Sanders (I-VT) said he would consider pushing the bill through via budget reconciliation if Republicans refuse to negotiate. (NBC News)
Joe Biden’s administration is buying 200 million more doses of the coronavirus vaccine, upping the U.S. capacity to 600 million doses, enough to vaccinate up to 300 million Americans. (Politico)
A Trump-appointed federal judge blocked Joe Biden’s 100-day pause on deportations yesterday, dealing one of the first blows to the Biden administration’s immigration overhaul. (The New York Times, subscription)
Retail traders fueled by Reddit, TikTok and social media hype are taking on Wall Street’s biggest hedge fund players in a bizarre standoff that has turned the financial market on its head. (Bloomberg, subscription)
What D.C. is talking about.
The filibuster. In Congress, there are several important rules governing how major pieces of legislation are passed. One of those rules is called a cloture vote, a 60-vote threshold in the 100-member Senate that ends the debate on a bill and moves it to an actual vote. For years, this cloture vote has been used to obstruct movement in Congress. If a party is in the minority with just 41 members, all of them can refuse to invoke cloture and stop a bill in its tracks — despite being outnumbered 59-41. This is called a filibuster.
Early on in President Barack Obama’s term, Republicans used — and some would argue abused — the filibuster in order to obstruct his nominees for Cabinet and judicial positions and to block some of his legislation. So in 2013, then-Senate Majority Leader Harry Reid adopted “the nuclear option,” abolishing the filibuster rules on judges and Cabinet nominees, but leaving them intact for Supreme Court justices and major legislation.
A few years later, Republicans used the filibuster rule to stop another nominee — this time Merrick Garland for the Supreme Court. After Trump won the presidency, Democrats returned the favor and attempted to block Neil Gorsuch. This time, though, it was Senate Majority Leader Mitch McConnell who abolished the filibuster, removing it as it applies to Supreme Court nominees. This is how Republicans then placed three justices on the Supreme Court in four years, and plowed through hundreds of federal court nominations as well.
Now, with the Senate split 50-50 and Democrats holding a thin majority (courtesy of Vice President Kamala Harris’s tie-breaking vote), the filibuster on major legislation is once again in the spotlight. Now Senate Minority Leader Mitch McConnell, during negotiations about how to run the split Senate, tried to press Democrats to pledge to preserve the legislative filibuster. Democrats refused, and until this week they were in a standoff. Then, two moderate Senate Democrats — Joe Manchin and Kyrsten Sinema — vowed not to abolish the filibuster, which led to McConnell backing off.
Sensing Republicans moving into an obstructionist position, Democrats are debating whether to abandon the filibuster in order to pass all the legislation they want with a simple majority — or whether to leave it in place.
This is the third time Tangle has covered the filibuster. You can read our most recent deep dive from this summer on the Senate filibuster here.
What the right is saying.
The right is opposed to abolishing the filibuster, and they’re urging McConnell to do everything he can to preserve it.
In The Washington Post, Marc A. Thiessen said Democrats have “vigorously” used the filibuster and “it’s pathetic they now won’t pledge to protect it.”
“In 2017, when Donald Trump was president and Democrats were in the minority, 61 senators — including 30 Democrats — signed a letter promising to preserve the right of the Senate minority to delay or block legislation,” he wrote. “But now that Republicans are in the minority, just two Democrats — Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) — are willing to make that same pledge… Under his [Schumer’s] leadership, Democrats used the filibuster to block funding for construction of Trump’s border wall in 2019. They used it not once, but twice to impede passage of the Cares Act — forcing Republicans to agree to changes including a $600 weekly federal unemployment supplement.
“They used it in September and October to stop Republicans from passing further coronavirus relief before the November election. They used it to halt Sen. Tim Scott’s (R-S.C.) police reform legislation so Republicans could not claim credit for forging a bipartisan response to the concerns of racial justice protesters. They used it to block legislation to force ‘sanctuary cities’ to cooperate with federal officials, and to stop a prohibition on taxpayer funding of abortion, bans on abortions once the unborn child is capable of feeling pain, and protections for the lives of babies born alive after botched abortions… Democrats should take stock of everything they delayed and derailed under Trump because of the filibuster — and then imagine all that and more being enacted by simple majority vote when Republicans regain control of Congress and the presidency, which they eventually will.”
The Wall Street Journal editorial board also threatened Democrats, saying they’d regret any moves to end the filibuster:
“The left has recast the filibuster as racist for its 1950s role in delaying progress on civil rights,” the board wrote. “But a mere four years ago some 61 Senators signed a letter calling to ‘preserve existing rules, practices, and tradition’ in Senate debate, including then Sen. Harris and Democrats Cory Booker (New Jersey); Patrick Leahy (Vermont); Chris Coons (Delaware); Sherrod Brown (Ohio) and many more. The only difference now is that a Democrat is President.
“Democrats are also pondering a backdoor bust of the legislative filibuster by exploiting a process known as budget reconciliation,” they added. “These budget bills can elude the filibuster, though there are conditions on what can be included… The left is at risk of repeating a costly mistake: Assuming they’ll always be in power. In 2013 Harry Reid broke the filibuster for judicial nominations to pack the D.C. Circuit Court of Appeals. He won a few appellate judges, but at the price of making it easier for Mr. McConnell to confirm three Supreme Court Justices in the last four years.”
In October, Chris Pope made the case that the filibuster is all about perspective.
“Yet, where people stand on the filibuster usually depends on where they sit,” he wrote. “Presidents have consistently disparaged an institution that makes it easier for the Senate to frustrate other branches of government. Trump has called for the filibuster’s abolition, George W. Bush sought its elimination for judicial nominations, and Bill Clinton’s administration contemplated a push to eliminate the filibuster before Democrats lost control of Congress in 1994… Senators, by contrast, tend to support an arrangement that bolsters their power and influence relative to members of the House of Representatives… the filibuster allows each senator the ability credibly to threaten obstruction of any piece of legislation, regardless of their seniority and which committees they may have a seat on.”
What the left is saying.
The left is divided on the issue, with some calling for an outright abolition after recent Republican obstructionism, and others insisting there are practical reasons to keep it.
In The New York Times, Adam Jentleson took a historical look at the Senate filibuster, writing that “Democrats must kill the filibuster and make the Senate great again.”
”Mr. McConnell will run the same playbook on Mr. Biden that he ran on President Barack Obama: Just as Mr. McConnell realized that Mr. Obama’s political brand hinged on his promise to fix ‘the broken politics in Washington,’ he knows that Mr. Biden’s relies on his ability to deliver bipartisan cooperation,” Jentleson wrote. “By the 2022 midterms, Mr. Biden’s pledges of bipartisan cooperation will lie in shambles.
“The supermajority threshold of today flies in the face of the framers’ intent,” he wrote. “They wanted the Senate to be a place where debate was thorough and thoughtful, but limited, and where bills passed or failed on majority votes when it became clear to reasonable minds that debate was exhausted. Originally, Senate rules included a provision allowing a majority to end debate, and an early manual written by Thomas Jefferson established procedures for silencing senators who debated ‘superfluous, or tediously.’ Obstruction was considered beneath them.
Alex Pareene argued that Manchin is “regurgitating one of the most common defenses of the procedure: that it forces bipartisanship, which is its own innate good.”
“What senators and filibuster-defenders want is to return to an idealized bipartisan past,” he wrote. “The filibuster should force compromise and bipartisanship; the fact that it doesn’t is almost immaterial. Instead of fixing the filibuster, they seem to argue, the filibuster should fix the senators.” Pareene says instead of abolishing the filibuster, Democrats should simply end the 60-vote threshold for breaking a filibuster.
“Congress only began requiring 60 votes to break a filibuster in the 1970s, and it wasn’t until about 10 years ago that Senate leadership demanded cloture votes to break filibusters on nearly all its legislative business,” he wrote. “If so many senators are committed to preserving ‘the filibuster,’ I say we let them leave it in place officially, while getting rid of the rule in practice.”
In The Washington Post, Aaron Blake cautioned Democrats, saying “there are plenty of compelling — mostly practical — reasons to approach such a change cautiously.”
“That 50-50 split, however, might also negate much benefit from getting rid of the filibuster,” he wrote. “Yes, they could pass everything with 50 votes given Vice President Harris will break ties. But if Republicans vote in unison, Democrats could afford precisely zero defections… The 2022 elections also loom large: They could well install Republicans back in control of the Senate and the House. Midterms are generally very tough on a president’s party, and Republicans need only the most modest of gains to take back both chambers. Some Democrats see this as an argument for going bold and dumping the filibuster now — time being of the essence — but it also means rolling back the most significant impediment to legislating could quickly boomerang.
“And on this count, Democrats need to consider how our politics are set up,” Blake added. “The fact is, despite Democrats’ current control, Republicans have inherent advantages when it comes to winning all three levers of power — and could just as soon reclaim the full control they had until two short years ago.”
My take.
Everyone’s a hypocrite.
That’s pretty much it. Republicans have abused the filibuster for the last decade, and in ways that felt absurd when they first began doing it. It’s like smacking someone over and over again and then insisting they let you approach them one more time — just this once — promising them you may be willing to talk things out.
Democrats signed a pledge en masse to preserve the filibuster a few short years ago, understanding it was a bulwark against a party and a leader they deemed dangerously radical. Now they can barely muster two of their own senators’ votes to support it, and both of them are doing it to protect their political hides back in states where the progressive left is not very popular.
Anyone who has recently followed national politics knows the Republican party has done far more obstructing than legislating in the last decade. Few things illustrate this better than the fact they have yet to even draft a health care bill to replace the one they’ve been trying to repeal for 10 years. But without the filibuster, Democrats would have ceded far more to Trump, and most of the actions he took would not have been so easily undone in the first weeks of the Biden presidency had the filibuster not existed.
If you’re on the left, there’s good cause to abolish it. Mitch McConnell has done absolutely nothing to show he’s interested in compromise or the middle ground. He didn’t give any reason to believe it during Obama’s presidency, and he certainly didn’t do anything to show it during the Trump presidency. The only glimpse of bipartisanship we’ve gotten during McConnell’s tenure overseeing the Senate was after a pandemic shattered Americans’ lives and he faced pressure from his own Republican president to go big — and even then, he did everything he could to slow-roll popular legislation. Whether that was good or not is up for much debate, and time will certainly tell, but that he refused to engage Democrats outside of COVID-19 relief is clear as day.
At the same time, it’s tough to overstate the short memories of the left. Trump overhauled the federal judiciary precisely because abolishing the filibuster on judges allowed him to. One could argue that was inevitable — that Republicans would have abandoned it if Democrats hadn’t — they did, after all, end the filibuster on Supreme Court justices. But we’ll never know for sure. Regardless, if history is any indication we’ll see a Republican majority in the Senate, the House, and perhaps even a Republican president again, all in the next decade. Are Democrats really ready to give up their only tool to slow a Republican majority?
If I were Schumer, I’d be perfectly content with the current position and leave the filibuster in place. Give Republicans a year to actually legislate and see if they’ll meet in the middle on the progressive agenda, and if they don’t — you apply pressure on Synema and Manchin to get on board. It’s true that the window of opportunity here is small, and Democrats could be out of the House majority by 2022. The country seems interested in a center-left administration and center-left legislation, and Democrats should force votes on policies like expanding Medicaid, preserving DACA, raising the minimum wage, legalizing marijuana and addressing climate change — all of these policies are popular, and they’ve earned the right to push them.
If they face nothing but obstruction, they’ll have better cause — politically and logically — to leave the filibuster behind. But they’ll have to do it expecting the boomerang to come back soon.
Your questions, answered.
Q: As a resident of NYC, what are your thoughts on Andrew Yang as a mayoral candidate? I know this may be more of a local topic but I thought that perhaps the story of a former presidential candidate running for mayor of the largest city in the USA deserves some coverage.
— Travis, New York, NY
Tangle: I like Andrew Yang. I’ve spoken to him a few times, emailed and exchanged some Twitter DM’s, and I followed his campaign closely when he was running for office. Many of his supporters, and indeed some members of his campaign team, read this newsletter. I find a lot of common ground with their worldviews. I think he’s a genuine, kind, empathetic person who has a real grasp on the speed at which our country is changing — and the pace at which we’re moving with it (which is too slowly).
But I’m not sure he’s right for New York. As silly as it sounds, the biggest red flag for me was a cringey social media video he published where he’s inside a New York “bodega” talking to a camera, imploring viewers to support their local bodegas. Behind him, though, were tall ceilings, fluorescent lights, organic foods and stocked shelves.
The truth is Yang wasn’t inside a bodega, he was inside a midtown Manhattan deli — maybe even some kind of organic foods store. He’s right that bodegas are crucial and necessary, but a true New York City bodega is selling delicious breakfast sandwiches, loose cigarettes, an array of cleaning products, 6 packs of beer, containers of eggs and every snack you can imagine. Not kombucha and arugula.
Frankly, the video was a good microcosm of Yang’s campaign so far. He left New York when COVID-19 hit (who can blame him?) and plainly explained why he fled upstate: he needed more space. The contrast wasn’t lost on New Yorkers, though. This is not a city that wants a mayor-to-be who will simply fold his hand and head to New Paltz when things get tough; it’s a city that wants someone on the ground who understands the basic character of the city and will fight for the working class.
Yang has innovative, forward-thinking and intelligent ideas. Many of them, I think, could benefit the city. He’s a fresh face in a world of repeats and I think he’s an important voice in the future of urban life and in the U.S. more broadly. I even think he could be a future mayor of New York City — but he’s got to earn his stripes, in my opinion, and that starts with living here full-time, running for more entry level positions in the city, and proving he’s in it for the long haul. At the very least, he needs to figure out what constitutes a bodega.
A story that matters.
The idea to eliminate stimulus checks for anyone earning over $75,000 a year is gaining momentum, and a new analysis of how those checks are being distributed suggests it may be wise. Opportunity Insights, a non-profit research organization, found that families earning above the $75,000 threshold are typically saving the stimulus payment — which provides little help to the economy, The Washington Post reports. Two economists who looked into credit and debit card payments found a major uptick in spending amongst those who earn less than $50,000 a year after receiving the payments, while spending barely moved for those earning over $78,000.
“Targeting the stimulus payments to lower-income households would both better support the households most in need and provide a large boost to the economy in the short-run,” John Friedman, an economics professor at Brown University and co-director of Opportunity Insights, told The Post. “These checks are really impactful for lower-income households.”
Numbers.
56%. The percentage of Republican voters who believe that Trump should either probably or definitely run for president again in 2024.
36%. The percentage of Republican voters who believe he probably or definitely should not.
33%. The percentage of Republican and Republican-leaning independent voters who said they are more interested in being a member of the Republican Party than the Patriot Party, the idea recently floated by Trump.
30%. The percentage of Republican and Republican-leaning independent voters who said they are more interested in being a member of the Patriot Party, the idea recently floated by Trump, than the Republican Party.
89,000. The estimated number of households that have left San Francisco since March.
51%. The percentage of college students who want more government regulation of major tech companies.
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Have a nice day.
If you think vaccine distribution is complicated, try getting them to rugged Alaska. That was the task in front of a team of health care workers who used planes, snowmobiles and sleds to reach some of the most remote places in America. Two nurses, a doctor and a pharmacist jumped from village to village to vaccinate 65 elders — sometimes having to wrap vaccines against their bodies to keep them from freezing inside the syringes. “We got to go from car to commercial airline, got picked up in a Sno-Go with a sled behind it, then we got on charter air, then we got picked up by a four-wheeler with a little trailer behind it, more Sno-Go, more sled,” said James Austin V, a registered nurse. “It’s actually more navigable out here in the winter than it is in the summer because you can travel on the tundra and all the water turns to navigable ice.” (Good Morning America)
Really wonderful breakdown of the filibuster, both this and the piece you wrote in April. It is incredibly frustrating that the Senate has become a body of obstructionism.
And perhaps there's an argument to be made that abolishing the filibuster would be a stronger check on the executive branch, if the Senate and Presidency are held by opposite parties. It does seem that without a minority filibuster, any President appointing life-long Supreme Court justices is exercising outsized power. The ship has clearly sailed on that, however.
Perhaps a middle road is possible? Lower the cloture vote requirement from 60 to say 55? I think the filibuster has its place, but things need to be changed so it's not purely obstructionism.