President Joe Biden will soon submit for a vote by the Senate a $1.9 trillion bill that contains dozens of powerful but costly provisions to combat the devastating health and economic effects of the COVID-19 pandemic.
Obviously, the president and all Democratic senators are hoping that Republican members of the Senate will support the president’s bill, although probably with some agreed amendments, as an absolute necessity for our country because of the pandemic.
However, initial indications are that Republican senators will instead filibuster the bill and thus defeat it. (Under the Senate filibuster rule, any senator may quickly, easily and anonymously require that a specified bill will pass only if 60 senators vote for it. For most bills, a 60-vote requirement is fatal.)
Indeed, just last week, Republican Sen. Mitch McConnell told new Senate leader Chuck Schumer, a Democrat, that unless Schumer promises that the Democrats will not repeal the Senate filibuster rule, McConnell will not let Schumer and the Democrats organize the Senate and begin legislative action. However, McConnell’s demand triggered widespread Democratic rage, and he quickly withdrew it.
However, there is a strong possibility that, beginning in the near future, McConnell will filibuster Biden bills, starting with the above COVID bill, just as he filibustered Obama’s bills.
If this happens, the only way the COVID bill or any Democratic bill will pass in the Senate will be if a majority of senators vote to repeal the filibuster rule itself. (A majority Senate vote, not a filibuster-based 60-senator vote, is all that is required for this repeal.)
Should the Democratic senators (or a combination of Democratic and non-Democratic senators) repeal the rule?
If the history of the Senate filibuster rule is any guide, the answer is a resounding yes.
■There is no constitutional basis or defense for the rule, and in the Federalist Papers and other writings, the Founders made clear that any such rule would conflict with the basic constitutional policy that, except as otherwise expressly provided in the Constitution, all Senate legislation should be decided by majority rule. In these writings, the Founders made clear their belief that the two-house structure of the Congress and the fact that between them senators and representatives represent a vast variety of policies and regions would suffice to ensure that congressional majorities respect minority rights.
■The first senator to ignore the above intent of the Founders was John C. Calhoun, a leading Southern senator, who used an early version of the filibuster rule to defend and expand Southern slavery and to seek to preserve it permanently.
■After the Civil War, Senate filibuster rules were used by Southern senators for many decades to prevent or defeat Senate civil rights bills, including, above all, bills guaranteeing Black voting rights and prohibiting lynching. These filibusters deferred basic justice for Black Americans for decades.
■The most recent use of filibusters was by Mitch McConnell, who vastly expanded their use. McConnell used filibusters to defeat over 100 bills proposed by President Obama, including not only civil rights bills but bills of every other kind.
Supporters of the Senate filibuster rule have argued that the rule is necessary in order to ensure cooperation between minority and majority senators. However, it has almost never been successful when used for this purpose.
In past years, President Biden himself has voiced support for the Senate filibuster rule, no doubt because of his respect for the Senate as an institution. Recently, however, even he has begun to express doubts about the rule. The above historical considerations should persuade him decisively to seek its repeal.
Is it possible that if the Democrats repeal the filibuster rule they will regret having done so when the Republicans return to power? The short answer is that Republican voters and their elected representatives are just as entitled to majority rule – and thus to repeal of the Senate filibuster rule – as Democrats.
The longer answer is that if legislation that a Democrat Senate is able to enact thanks to the filibuster rule repeal wins wide public support, a Republican majority won’t be able to repeal this legislation when they regain control of the Senate. And the same restriction will apply to the Democrats if, because of a filibuster repeal, a Republican Senate is able to pass widely popular legislation.
The Senate filibuster rule is a harshly anti-democratic and arguably unconstitutional rule that has done enormous harm to our country. It should be repealed immediately, and both parties should celebrate its repeal. Thus, regardless of their party affiliation, all New Hampshire voters, whether Democrat, Republican, or independent, should write Sens. Jeanne Shaheen and Maggie Hassan to demand their support for the repeal.
(John Cunningham is a Concord attorney.)
