On all the good the “60 vote threshold” has done

Lessig

5 days ago·4 min read

It’s impossibly difficult to know whether Senators like Sinema actually mean what they say, or whether they just think we’re so stupid that we won’t notice how crazy what they say is.

Sinema was almost in tears as she waxed rhapsodic about the “60-vote threshold” — as if there is any evidence that threshold has done any good for America.

Because implicit in her argument is a hint of the error that Manchin astonishingly made — the suggestion that we have a “232-year tradition” that Democrats are now trying to change.

That is, as my mom would have said, just piffle.

The above gif is the history of the filibuster. It begins at the beginning of the last century. It continues through the current Congress. The bars represent the number of times a cloture motion was filed. That’s an indication of the number of filibusters there were.

Over this hundred-year history, two things changed — the rules, and the norms. For the first period, where there are essentially no filibusters, the rules required a Senator to earn the slowing of debate, by actually holding the floor and speaking.

The second period saw the rules change, to flip the burden, and force those who would stop debate to demonstrate a supermajority in favor of ending debate.

But that rule ran with a norm that limited the filibuster to “important” issues. Obviously, there are more filibusters during this period because the filibuster is easier. But obviously, as well, not every issue gets filibustered, because Senate norms limited the application of the filibuster substantially.

The third period saw that norm change. Or let’s remove the passive voice, and say it more directly: That third period saw Mitch McConnell end that norm, and establish what Sinema is so emotionally committed to defending: “the 60-vote threshold.” Now the rule was not the exception. Now the rule was the norm. McConnell made this change because he wanted to assure, as he promised, that Obama would be a one-term President. (Sorry, Mitch.) But the numbers don’t lie: There is a radical change in the frequency of the filibuster after McConnell becomes leader, leading to an effective stalemate in the Senate.

What Democrat could like this picture?

I get why Republicans like it. The single policy objective of Republicans is to cut taxes, and — surprise!, surprise!—because budget reconciliation is exempted from the filibuster, that policy objective does not get blocked by the filibuster.

But how could a Democrat — especially a Democrat who reminds us she was a “social worker”—defend it?

Sinema says the 60-vote threshold forces compromise. True, because every rule forces compromise. But the question is with whom does it force compromise? A majoritarian rule forces compromise with Senators in the middle. A super-majority rule forces compromise with Senators at the extreme.

How extreme? Again, a GIF tells it all:

If 41 Senators can block any (non-budget) bill, then the people with the power are the far-right in America. Put more directly, we can get what we can convince Senators representation states where Trump won by at least 10 points. The filibuster is a tool to empower them to block the majority.

Senators Sinema and Manchin are defending a system that gives the extremists the power to block policy in America. That policy fuels extremism, it doesn’t staunch it. It rewards extremism, it doesn’t punish it. It produces exactly the dynamic that destroyed America under the Articles of Confederation — because it is exactly the rule that destroyed America under the Articles of Confederation: A rule that gave to the extremists a veto, rather than an obligation to work to get along.

There is no defense for McConnell’s innovation — the “60-vote threshold.” It’s not 15 years old, and it’s already done great harm. Its purpose was always exactly its effect: to stop the government from doing anything, except cutting the taxes of the politicians’ donors.

Spend another 8 minutes going down this rabbit hole with this video, The Filibuster is a Fraud. It’ll be fun in an “I’m just waiting for the comet to hit” sort of way. #LookUp