The Gray Lady retains its share of dysfunction — its misleading headlines, its reflexive both-sidesism — but sometimes still gets many things right, especially months-long investigative work. This morning the Editorial Board has decided (rightly) the legislative filibuster must go.
The election reforms contained in H.R. 1 mean to restore democracy to this supposed democracy must not be stopped by its antidemocratic features, especially not by accreted customs not written into the U.S. Constitution.
Where good legislation goes to die
The U.S. Senate by design already undermines the one-person, one-vote principle. Power is already disproportionately distributed in favor of states with the smallest populations. The body’s hoary customs simply power-up that undemocratic lean. In particular, the legislative filibuster which is itself broken:
Bipartisan cooperation and debate should be at the heart of the legislative process, but there is little evidence that the filibuster facilitates either. The filibuster doesn’t require interparty compromise; it requires 60 votes. It says nothing about the diversity of the coalition required to pass legislation. It just substitutes 60 percent of the Senate for 51 percent as the threshold to pass most legislation. If the Senate was designed to be a place where both parties come together to deliberate and pass laws in the interest of the American people, the filibuster has turned it into the place where good legislation goes to die.
That’s one reason the framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation. They had watched how such a requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist 22, “What at first sight may seem a remedy, is, in reality, a poison.” Supermajority requirements would serve “to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”
The practice that once allowed senators from the Jim Crow South to circumscribe the rights of Black citizens again protects those who would keep them under white thumbs under cover of law.
The Editorial Board recognizes the system already contains a “redundancy” of “veto points and countermajoritarian tools, including a bicameral legislature, a Supreme Court and a presidential veto.” The filibuster simply adds another that is custom not law.
There are multiple reviews of the filibuster’s historical evolution and the Times adds its own. But the reason to roll it back are less about process than principle, especially in a time when revanchist forces in dozens of states that “have passed hundreds of voting restrictions” in recent years “are pushing hundreds more, under the guise of protecting election security.”
We have in our midst a large minority of Americans who, to use current parlance, are Americans in name only. They wave their flags and sing the national anthem, but the country to which they pledge allegiance bears little resemblance to the one mapped out in their pocket constitutions. If H.R. 1 fails in the Senate, “Republican leaders will continue to entrench minority rule.” Readers do not need the New York Times to tell them so.
Democracy is “under siege” around the planet according to Freedom House’s 2021 report, including in the U.S. The costs of denying that are not unlike the human costs of COVID-19 denial, just perhaps more slow-rolling. The bitter irony in the land of the free is that those who boast the most of their love of country are the ones slowly killing this democratic republic. Only maliciously and jealously, not by accident like Lonesome Lenny.
The Board concludes:
The perverse result of all this is that it is now easier to block a piece of legislation, which could be repealed in the next Congress, than it is to block a federal judge seeking a lifetime appointment. Any intellectual justification for the filibuster has been gutted by the fact that it doesn’t apply anymore to many important issues before the Senate.
The point of H.R. 1 is not to help Democrats. It is to rebuild and reinforce the crumbling foundations of American self-government and abolish voter restrictions erected for explicitly partisan gain — a federal law that would protect all voters. If the choice is between saving the filibuster and saving democracy, it should be an easy call.
The filibuster must go, the Board repeats, while recommending no path to do so. It may be that the only expedient “treatment” is a set of rule changes that at least alleviate the symptoms of minority rule. Let H.R. 1 help with the rest.
