Always remember that the U.S. Senate is the most anti-democratic institution in all of our governance. The fifty Republican senators collectively represent 41,549,808 fewer Americans than the 50 Democratic senators (out of a total population of 328,239,523). Mitch McConnell, the outgoing Senate Majority Leader and obstructionist-in-chief, represents only 4,467,673 Kentuckians, while wielding immense power. McConnell, you will recall, working from this minority base, first stonewalled the nomination of Merrick Garland to Supreme Court and then jettisoned the Senate filibuster rules (as applied to the Supreme Court) to place three Federalist Society justices on the Court for life. The Supreme Court, thanks to McConnell’s machinations, is now also a minority-controlled institution based on the populations represented by Senators who approved their nominations. 

Now McConnell, even as he shifts from Majority to Minority Leader in the Senate, is using his remaining leverage in an attempt to extract a promise from Democrats that they will not exercise “the nuclear option” and take the final step to rid the Senate of the even greater minority stranglehold on Senate business offered them by the Senate filibuster, aka the “cloture rules.” McConnell wants Democrats to negotiate away the very power that McConnell himself exercised in his minority takeover of the Supreme Court. McConnell’s demand should provoke outrage. The prospect that Democrats will jettison the filibuster is an important tool (as is the threat of adding justices to the Supreme Court). Neither action is currently contemplated. To take either action would require solid agreement among the 50 Democratic Senators and Kamala Harris. Such agreement [think Joe Manchin (D-WV) and Kristin Sinema (D-AZ)] is currently lacking, but what of that agreement after eight or ten months of continued Republican minority obstructionism that blocks each and ever Democratic legislative effort? To give up those threats would be like asking Democrats to voluntarily neuter themselves. 

So what is this filibuster, anyway? What is its history? In an impeccably timed new book, “Kill Switch: The Rise of the Modern Senate and The Crippling of American Democracy,” Adam Jentleson lays out the Senate filibuster’s history current use. An interview with Mr. Jentleson entitled “The Racist History Of The Senate Filibuster” on Terry Gross’s Fresh Air is available in your browser or as a podcast. It is a lesson in civics and the anti-democratic nature of our governance. (The discussion of the book starts at 8:17 in the program, if you’re pressed for time. At least in the browser version you can see the text of the interview by clicking the rightmost icon [parallel horizontal bars] in the blue “40 minute listen” line.)

Here’s the bare-bones summary: The Senate filibuster arose out of the efforts starting in the 1830’s by Sen. John C. Calhoun, a flagrantly white supremacist southern Senator, for the purpose of blocking anti-slavery legislation. None of the founding fathers ever spoke of or advocated for a filibuster. By the time Calhoun pushed for it the founders were all dead. The filibuster has no roots in the U.S. Constitution. For the 87 years between the end of Reconstruction and 1964 the filibuster was only used to block civil rights legislation. The modern filibuster has become so routinized that all it requires is for one senator to send an email invoking it, a mechanism that assures McConnell of the ability to block nearly all legislation and bring the basic legislative function of Congress to a standstill. This is a blocking power that McConnell has used more than any other Senate leader. I still recommend the podcast and the book. You will emerge armed with facts–and angry.

What is McConnell’s negotiating strategy for trying to extract this promise from Democrats? It’s complicated. With Kamala Harris as the deciding vote, Democrats have a 51-50 majority in the U.S. Senate, but already Mitch McConnell (R-KY) is blocking the work of Senate, trying to extract a promise from Democrats to keep the Senate filibuster intact in its current form. How does this work?

Every two years we hold a national election (like the one last November) that changes the composition of Congress seated at the beginning of the following January, two months later. With each new two year Congress (this new one is the 117th), both houses start the session by voting in a new set of rules (the “organizing resolution”). Unless new rules are established, the House and Senate would carry on under rules established at the beginning of the last Congress. Usually the organizing resolution is done mostly within the majority party, the changes are perfunctory, the legislative body passes the resolution by majority vote within its chamber and off they go. The process of rules change is seldom newsworthy, but with Mitch McConnell negotiating nothing is ever easy. This is only the fourth time the U.S. Senate has been evenly divided, so there isn’t a lot of precedent. (The other three times this happened the even split was short-lived. There are a lot of old people in the Senate. They become ill and die. Sometimes they switch parties.)

From an article written by Abigail Abrams in the January 12 Time:

The first hurdle is the organizing resolution

Incoming Democratic Majority Leader Sen. Chuck Schumer and outgoing Republican Majority Leader Mitch McConnell will have to agree on a set of rules, known as an organizing resolution, which governs how the Senate works. The organizing resolution determines everything from committee membership and staff budgets, to who gets the best office space.

Even with Harris’s tie-breaking vote, Schumer will need McConnell’s support: passing the organizing resolution requires 60 votes. As a result, Republicans will likely end up with much more power than a minority would usually hold.

The last time the Senate was split 50-50, in 2001, lawmakers agreed on an organizing resolution that allowed both parties to share power. Under that deal, the parties agreed to split committee memberships and staff equally and changed the rules, making it so that if a tie vote prevented a measure from moving out of committee, either the majority or the minority leader could bring the bill to the Senate floor.

Schumer and McConnell may take a cue from that 2001 agreement, but Senate observers note that, in these hyper-partisan times, agreeing on even the rules of the road may be tricky. “As partisan as it was in 2000, things have become even more partisan,” says Sarah Binder, a senior fellow in governance studies at the Brookings Institution.

The prospect of ditching the filibuster

In theory, Senate Democrats could change the cloture rule—and, with it, the need for 60 votes. They could, in other words, kill the filibuster.

There are two ways that Democrats could do that. The first is by holding a vote to change the Senate’s standing rules. The only problem is that a vote to change the rules requires a two-thirds majority. So, as has happened many times in the past, Senators can simply filibuster the attempt to eliminate the filibuster.

The second way to kill the filibuster is known as the “nuclear option.” That would mean that Senate Democrats vote to establish a new precedent in the chamber, which can require only a simple majority: the 50 Democrats plus Harris. The nuclear option has been employed twice in the past decade—once in 2013 by Democratic Senate Majority Leader Harry Reid and then once in 2017 by McConnell—to make it easier to confirm executive and judicial nominations.

In recent months, Democrats have been clamoring to eliminate the filibuster. Former President Barack Obama called it a “Jim Crow relic” and President-elect Biden said he’d consider eliminating it, depending “on how obstreperous [Republicans] become.” But Democrats are hardly in lock step over the issue. Sen. Joe Manchin of West Virginia has has said he will not support such a vote.

Offering a promise not to exercise “the nuclear option” and ditch the Senate filibuster would hand McConnell and immense victory for his obstructionist tactics. Without the threat of the nuclear option hanging over the heads of Senate Republicans, McConnell could wield the filibuster to clamp down on nearly all legislation sponsored by Democrats just like he did the last four years. Faced with Republican blockage what could Democrats accomplish? Only three avenues are open: 

1) Early in Trump’s reign there was a flurry of Republican legislation to roll back Obama’s executive orders under the “Congressional Review Act,” a sneaky piece of Republican legislation that avoids the filibuster and allows a simple majority of both houses to roll back administrative rules finalized late in the previous presidency–and block similar rules from being re-imposed. Democrats could (and should) use this tool. Republicans will surely attempt to run down the clock so that fewer Trump administration regulations are subject to the Democrats exercising the CRA. 

2) “Reconciliation” can be used to pass legislation related to the budget and spending with only 51 votes. Reconciliation can be used only once a year and its use is complicated. In 2017 Republicans shoehorned their attempted repeal of the Affordable Care Act into the Reconciliation process–and famously fell short of even getting the needed 51 vote majority with Sen. John McCain’s dramatic thumbs-down.

3) Finally, McConnell, in his zeal to place Federalist Society judges on the Supreme Court, used the “nuclear option” to blow up the filibuster as it pertained to Supreme Court nominations. As a result, if a Supreme Court seat were to become vacant, Democrats would certainly fill it using a simple majority vote.

Obstructionism serves McConnell and his Republicans well. The Party of “No” doesn’t need to legislate, except to pass tax cuts, and that can be done under the Reconciliation rules they used to pass the Tax Cuts and Jobs Act of 2017. That McConnell now wants Democrats to negotiate away their final “nuclear option” should be viewed with derision. 

The filibuster is a hideous anachronism, an obstructionist tool from our roots in slavery and racism that serves only to give Senators representing a minority of Americans veto power over all legislation. We need to be prepared to pitch it out.

Keep to the high ground,

Update: Late last Monday, January 25, hours after I wrote this, McConnell recalculated. Apparently, he decided that holding up Senate business over a demand for a promise to retain the filibuster was costing him in the court of public opinion. McConnell relented, but not before contacting and being reassured by Joe Manchin (D-WV) and Kristin Sinema (D-AZ) that they would not vote to abolish the filibuster–with a 50-50 break the voters of Manchin and Sinema would be required to get a majority to exercise the “nuclear option.” For an excellent overview of McConnell, his thirst for power, and his “deal with the devil” read Jane Mayer’s article in the New Yorker, “Why McConnell Dumped Trump.” Much of the same material is available without a paywall in an interview with Jane Mayer on NPR, “Sen. Mitch McConnell’s Post-Trump Posturing.”