Vox’s Ian Millhiser on why we need to nuke the filibuster to save democracy

Rebecca talks to Vox’s Ian Millhiser about the ongoing debate over what to do with the filibuster — and why it isn’t just standing in the way of much of the Biden-Harris agenda, but key democracy reform measures the GOP wants to stop at all costs. Subscribe to Off-Kilter on iTunes.

The Senate may be split 50–50, but the Democratic half of the chamber now represents over 41 million more people than the Republican half.

This math comes to us courtesy of Ian Millhiser, a senior correspondent at Vox.com.

Now that the new year has started in earnest — following President Joe Biden’s and Vice President Kamala Harris’s swearing in earlier this week, and the seating of three new Democratic Senators — a heated debate is in full force over what to do with the filibuster, as part of a larger national push around democracy reform.

Rebecca sat down (virtually) with Ian to break it all down.

This week’s guest:

  • Ian Millhiser, senior correspondent, Vox.com

For more on all this:

TRANSCRIPT:

♪ I work and get paid like minimum wage

Sights to hit the clock by the end of the day

Hot from downtown into the hood where I slave

The only place I can afford ’cause my block ain’t safe

I spend most of my time working, tryna bring in the dough…. ♪

REBECCA VALLAS (HOST): Welcome to Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas.

Well, the Senate may be split 50/50, but the Democratic half of the chamber now represents over 41 million more people than the Republican half. This math comes to us courtesy of Ian Millhiser, a senior correspondent at Vox.com, who crunched the numbers once we knew the results of the Georgia runoffs. Now that the new year has started in earnest, following President Joe Biden’s and Vice President Kamala Harris’s swearing in earlier this week and the seating of three new Democratic senators, of course, a heated debate is now in full force over what to do with the filibuster as part of a larger national debate around democracy reform. So, I’m thrilled to bring back my good friend, Ian Millhiser, to break it all down. Ian, thanks so much for coming back on the show, especially in quite the week.

IAN MILHISER: Yeah, no. I mean, a lot has happened this week. But no, it’s great to be back on the show. And hopefully we can do something about the fact that we barely have a democracy anymore in this country.

VALLAS: Well, and that’s exactly why I wanted to bring you back. This is not going to be the most kind of poverty-focused episode we’ve ever done because there’s much broader implications for everything we’re talking about. But before we get into it, I want to say everything we’re talking about obviously has an immense amount to do with economic policy and all the other kinds of wonky policy areas that people who listen to this show care about. Because without democracy, what do we have? So, it felt really important to kind of start this new year, which feels like it really is starting in earnest this week, off with you in, because we got to talk about the filibuster if we’re going to talk about what can the Biden-Harris crew get through Congress, and in particular through the Senate. So, talk to us about the filibuster. Break it down. How does it work? We’re going to get into what it has to do with democracy in a moment, but I feel like the nuts and bolts is important to understand first.

MILHISER: Sure. So, I think it’s helpful to understand what a despicable institution the Senate is before we get all the way to the filibuster. So, you know, you started off by pointing out that even though Democrats and Republicans each have 50 seats in the Senate, the Democratic half controls 41 million, or represents 41 million, more people. And the reason for that is that the Senate is malapportioned so that California has 68 times as many people as Wyoming, but they both get two Senate seats. So, you already have this very anti-democratic institution where it’s difficult for Democrats to compete on an even playing field. And then even if Democrats manage to, as they did, overcome malapportionment and eke out a majority in the Senate, the filibuster then creates another problem.

So, the filibuster makes it so that in order to pass most bills through the Senate, you have to get 60 votes. Normally, you only need 51 votes, and it can be 50 votes plus the Vice President. But to pass most legislation, you need 60 under the filibuster.

VALLAS: And that’s what people generally call a filibuster-proof majority.

MILHISER: That’s right. Yeah. If 60 senators support something, then it can’t be blocked. Now, I mean, to dive down a bit into the weeds here. So, there are lots of things that can be done with only 51 votes. You can confirm a nominee with only 51 votes. You can pass some legislation, mostly spending legislation. Taxing and spending legislation can be passed with 51 votes, although the process for doing that is really complicated. But to pass any kind of civil rights bill, any kind of voting rights bill, to admit D.C. or Puerto Rico as a state, to do anything to regulate a business, basically to do anything at all that doesn’t involve either changing who is taxed or changing how much money the government spends, you have to get 60 votes right now unless you get rid of this filibuster. And it’s actually surprisingly easy to do that, provided that you have 51 votes who want to.

VALLAS: And for anyone who’s listening and going, man, I really want to know more about what Ian just said, what is this whole universe of stuff that has to do with tax and spending that you can do with 50 votes? Well, do not fear [00:04:44]Off-Kilter [0.0s] listener. We have an episode for you. We did it last week with Dylan Matthews, also from Vox. We’re having a little bit of a Vox explainer series this a couple of weeks back to back.

MILHISER: We’re good at that.

VALLAS: You guys are really good at that! You’re the best at that, so that’s why I go to you. But Dylan Matthews breaks something down called budget reconciliation, which is a strategy for passing things with only 50 votes in the Senate, if they meet certain rules. Lots more where that came from in last week’s episode. But Ian, sticking with you here now on kind of setting that set of things aside. OK, there’s this universe of stuff that you can’t do with budget reconciliation. And I would say it’s larger than the universe of what you can do with it. We got to talk about all these things that are part of the Biden agenda, and in particular, part of the democracy reform agenda that can’t get done through reconciliation. Clyburn, Representative Clyburn, in the House, part of House leadership has called the filibuster just in the past couple of days anti-civil rights. Talk to me about the growing case for getting rid of the filibuster as an anti-democratic institution, as you put it, and why some, many actually, are saying that getting rid of it is not just necessary to get parts of the Biden agenda done, but it’s necessary to save democracy.

MILHISER: Yeah. So, first of all, the filibuster is an accident. So, how the filibuster came about, it’s not in the Constitution. How it came about is that the Senate used to have a, it was called the motion on the previous question, which was a motion that could be used to end debate on a topic and proceed to a vote on whatever that topic was. And what happened to the motion on the previous question is very early in American history, Aaron Burr, remember him? He was the Vice President of the United States, and he just got done killing Alexander Hamilton. And after killing Alexander Hamilton, he returned to the Senate, and he said, hey! Like, I want to do some rules reform. And I found this thing, the motion for the previous question. And I think it’s kind of superfluous, and it doesn’t really serve a purpose because I guess I don’t understand what it actually does. And so, let’s get rid of it.

And the Senate listened to Aaron Burr and got rid of this motion for the previous question, not because they thought that they wanted to have bills be debated forever with no way to end debate, but because they made a mistake. Because they thought that they were getting rid of a superfluous motion that no one ever used, when in fact, they got rid of something that was really, really important.

And then for several decades, it actually didn’t matter because no one noticed that there was no way to end debate until maybe 30 or 40 years later, some senators realized, well, wait a second. If we just want to keep talking about something, there’s no way to force a vote on the issue. And so, that led to the first filibuster. The filibuster has since been weakened numerous times. I mean, it used to be that literally there was no way to end debate. And so, if one senator wanted to block a vote on something, they could just block it forever. I think during the Wilson administration, the rule was changed so that 67 votes could end debate. And then later on, that threshold was reduced to 60, which is where we are now for most issues.

But the point is, this is an accident. You know, the idea wasn’t that anyone sat down and said, hey. You know what I think would be really great? If we make it almost impossible to pass legislation because you need this enormous supermajority in order to get anything done. That never happened. It was done by accident. For most of American history, there were still very strong norms against filibustering, although it was used a lot to filibuster civil rights legislation. And those norms broke down about the same time that Mitch McConnell became the Senate Republican leader. So, this is something that no one planned for, and yet here we are.

VALLAS: Well, and you’re really getting to some of the question I was sort of flagging there about why is it that people like Jim Clyburn are calling the filibuster anti-civil rights. Some of the defenders of the filibuster, you know, a.k.a. the minority party in the Senate right now, and Mitch McConnell and his ilk, might say that that’s histrionic or hyperbolic. But you just pointed out there is an element of the history of the filibuster itself that shines a light on it as a tool for quite literally obstructing civil rights legislation in this country, in the prior century. Now, here we are with folks saying that we need to get rid of it to save democracy. The Voting Rights Act is a big part of why people are making that point.

MILHISER: Right. And so, I mean, let’s take a step back before we get into this specific voting legislation because I think it’s important to understand just what a rough state our democracy is in right now. So, there’s some things that are in the Constitution that create the problem. Senate malapportionment is in the Constitution. That’s a huge problem. The Electoral College is a huge problem. If 40,000 of Biden’s voters hadn’t shown up in Arizona, Wisconsin, and Georgia, Donald Trump would’ve won, even though he lost the popular vote by almost, by more than, seven million votes. So, the Electoral College is a huge problem. But then we also have, you know, we have a problem of gerrymandering, and Congress could forbid gerrymandering. We have a problem where you have laws like voter ID laws that are being passed because poor voters and voters of color are less likely to have ID. And so, if you pass that law, it disenfranchises them. You have a lot of states passing these laws whose purpose is to disenfranchise voters who are Black, who are brown, or who are poor because those voters are more likely to vote for Democrats over Republicans.

So, we need legislation to get rid of gerrymandering. We need legislation to get rid of racist laws in the states. We need legislation to get rid of laws whose purpose is to prevent certain people to vote. And there’s a bill that’s S1, meaning that is the Democrat’s top priority in the Senate that would do all of these things. It would restore much of the Voting Rights Act that the Supreme Court has taken away. It would ban a lot of really racist practices by state lawmakers. It would, it has a number of provisions in there that are designed to dismantle partisan gerrymanders. It’s a really ambitious bill. And the reason why it is not law is because it can be filibustered. And so, so long as the filibuster exists, we’re not going to have that voting rights bill become law. So long as the filibuster exists, you’re not going to have statehood for places like D.C. and Puerto Rico.

And I mean, one reason you want statehood for places like D.C. and Puerto Rico is that people who live in D.C. and Puerto Rico are citizens. So, they should get representation in Congress. But even setting aside that question, it also would help to reduce the problem of malapportionment. You wouldn’t have this, you wouldn’t have as much of a situation where states that are small and that are overwhelmingly white are overrepresented in the Senate. So, there’s a lot of stuff that needs to happen to restore or at least begin to restore our democracy, but you can’t do it unless you first get rid of the filibuster.

VALLAS: Yeah. So, it’s just such an important reminder. What you’re laying out here is that the filibuster itself obstructs all of the legislation that flows from what you described, right? It’s the thing. Nuking the filibuster then ends up being the prerequisite to being able to do democracy reform in the varying ways that you’re describing. All of which is, by the way, teed up in bills that have, many of which have passed the House, but which will not, as you’re describing, be able to find a life in the Senate as long as the filibuster exists.

It feels like it’s worth actually kind of painting a picture of what a filibuster looks like. I realize Ted Cruz is not a person anyone particularly wants to think about right now or picture in their minds. But, boy, does he come to mind for me when I think about some of the more recent and visible abuses of the filibuster, including his wonderful appearance with Green Eggs and Ham. Talk about how a filibuster gets used and how it’s been used in recent years.

MILHISER: Yeah, I mean, sometimes a senator will decide, like as Ted Cruz did, to stand on the floor and rant for 27 hours. And that’s something they’re allowed to do. But that’s really just theater. You know what a filibuster actually looks like? It looks like nothing happening. So, the way that the filibuster rule works is that if there is legislation that the minority wishes to block, they could just say, “Hey. We’re blocking this.” And then it is up to the majority to produce 60 votes. So, the inertia is on the side of the minority here. All the minority has to do is nothing, and the legislation doesn’t move forward. The filibuster is maintained. The majority has to actively produce 60 votes in order to end the filibuster.

So, there was a number of proposals, actually, to fix that problem without necessarily getting rid of the filibuster entirely. So, one sort of partial solution, if you could just flip the presumption. You could say that instead of the majority having to actively produce 60 senators to break a filibuster, you could say that the minority has to actively produce 41 senators to maintain the filibuster. And if at any moment, they don’t clear that threshold, the filibuster is automatically broken. Another thing that you can do is you can actually make people do what Ted Cruz did. You know, you can have what’s called a talking filibuster, which means that if you want to filibuster, you have to actually go to the Senate floor and just keep talking. And for as long as you’re talking, the bill doesn’t pass, but the minute you collapse in exhaustion or you have to pee or whatever, the filibuster ends.

VALLAS: Just for the record, I have to say, having watched talking filibusters, that is the main thing that comes through my mind and stays in the front of my mind the whole time is, I would be off this floor in less than an hour having to pee. I would be the worst at a talking filibuster. And I don’t know how people manage to do it for that many hours, but just thought I would throw that in there, you know, in case anyone else was thinking the same thing I was thinking about: 27 hours standing in the same spot.

MILHISER: Right. So, you know, like you said, a very easy solution to the filibuster problem is make the minority take the physical challenge. You want to filibuster this thing? Fine. Let’s see how long your bladder holds. There are lots of ways that you could keep a filibuster without having it be this thing that ends all progress.

And I will note what’s so ridiculous about this is that it only takes 51 votes to change the Senate rules. So, there was a rule saying that you need 60 votes to pass most bills, but you could change the rule with 51 votes. So, the only reason the filibuster is still there is because there are a handful of Democratic holdouts who refuse to vote to change the rule.

VALLAS: Well, and let’s get into that, right? Because people are hearing this right now and probably thinking, OK. If I’m persuaded, how do we do this? Why haven’t we done this if it takes 51 votes? That would be the 50 votes Dems have in the Senate plus the tie breaking vote from Vice President Kamala Harris. What is the landscape looking like? Lots and lots of attention on Joe Manchin right now, a senator from West Virginia and what he will do. What’s your — I don’t want to put you on the spot for a whip count, Ian — but what’s your sense of the chances of actually doing this? And also, what are we hearing from the Biden administration at the same time that we’re hearing calls for unity?

MILHISER: Yeah. I mean, well, the Biden administration’s really frustrated because they want their cabinet confirmed. They want to move forward with some big COVID relief bills. And that’s really hard to do because of the — Even the confirmations are really hard to do, even though you don’t need 60 votes to confirm someone. And let me explain why. So, right now, even though there’s a Democratic majority in the Senate, Republicans still control all of the committees. All the committees have a Republican majority and they have Republican committee Chairs. And the reason for that is there was a brief period — So, the new Senate was sworn in on January 3rd, and on January 3rd, Republicans still had a majority. The Georgia runoffs hadn’t happened yet. Mike Pence was still Vice President. Republicans had the majority. So, they passed what’s called an organizing resolution. And an organizing resolution is just a document that says, OK, here’s how many people in each committee. Here’s how many seats each party gets. Here’s who the Chairs are and so on and so forth. So, they passed an organizing resolution giving control of the committees to Republicans.

And then on January 20th, Warnock and Ossoff, Senators Warnock and Ossoff, were sworn in. Kamala Harris became Vice President, which means that she gets the tie-breaking vote. And all of a sudden you have a narrow Democratic majority. So, what should happen is there should be a new organizing resolution, and the new organizing resolution would give Democrats control of the committees and would have Democratic committee Chairs. The problem is that Mitch McConnell is filibustering the organizing resolution. And in order to break that filibuster, Democrats need to do one of two things. Either they need to get 60 votes to break that filibuster, or they need to all vote together to say that, you know, to change the rules to say that you can’t filibuster an organizing resolution.

And so, the big question on everyone’s mind right now is whether all 50 Democrats will stand together on that. Joe Manchin in particular, Senator Manchin from West Virginia, has said that he doesn’t want to get rid of the filibuster, but I mean, Manchin’s supposed to be a committee Chair right now. The reason he’s not a committee Chair right now is because of the shenanigans that Mitch McConnell is up to. And so, the question is whether Joe Manchin and a few other Democratic senators who, in the past, have expressed concerns about ending the filibuster say, you know what? We don’t like these shenanigans. We don’t like that we’re not getting our committee seats or our gavels. And we’re, at the very least, going to create an exception to the filibuster rule so that we can get this organizing resolution through.

VALLAS: So, Ian, in the few kind of minutes that we have — and we’ve covered a lot of very wonky territory already, but I feel like you do it better than most, right, in really breaking this down in intelligible ways — I guess the kind of question remaining then in people’s minds is what would the case — or at least it would be remaining in my mind if I were listening, and it’s what’s in my mind as I’m listening to you — what’s the case not to do it? And obviously, this requires some level of telling of history, given that this is not the first time that there has been discussion around nuking the filibuster.

MILHISER: Yeah. So, the case that I’m hearing — and I mean, Manchin, I think has made a version of this argument — is that the filibuster forces bipartisan compromise because since you can’t do anything without the other party, it forces you to come together and work things out. Now, there are several reasons why I think that’s wrong. One is that it doesn’t force bipartisan compromise because if the minority would prefer for nothing to happen. So, Mitch McConnell is happy with nothing passing the Senate. And so, there’s no reason for him to compromise so that things will will pass the Senate. The other problem with that is just that it’s anti-democratic. We just had an election, a Democrat won the presidential race by seven million votes, the voters voted for a Democratic House and a Democratic Senate. And so, if you believe in democracy, Democrats should govern, at least until we have another election, and the voters get to decide whether they like what the Democrats have done or not. I mean, that’s how democracy’s supposed to work. But the argument is that, in theory, it will bring people together for compromise. Again, that’s not happening. And if anything, if you do want to see bipartisanship, I think you are more likely to see bipartisanship if the filibuster is dismantled. And here’s why.

The reason why I think you’re more likely to see it is that if you get rid of the filibuster, there are going to be a lot of bills that everyone’s going to know is going to pass. And if you’re a Republican senator and your choice is to vote no on that bill and it passes anyway, or to vote yes for it and maybe ask if you can have an amendment to that bill, all of a sudden, it’s in your interest to participate constructively in the legislative process. If you know the bill is going to pass anyway, then you want, as a Republican, you want to try to shape that legislation as well. And so, I think we would actually see more bipartisan legislation if Republicans knew they didn’t have the option of just blocking everything. So, they actually had to participate in a constructive way and say, OK, this bill is going to pass. So, how can I work with the Democrats to try to shape this legislation in a way that I’ll find more amenable?

VALLAS: What should folks be watching in the weeks ahead? What do you expect are going to be the kind of next key bellwethers as we try to figure out how this is all going to play out?

MILHISER: The big fight is going to be this fight over the organizing resolution. And I don’t know how fast it’s going to play out. You know, my sources on the Senate tell me that for the moment, the Republicans, while they’ve been slow walking confirmation of Biden’s cabinet, for the most part, they’ve been playing ball with confirmations. And so, there isn’t an emergency need to get Democratic committee Chairs in so that like, you know, to prevent nominees from being blocked. Although those nominations are moving much slower than they should. But eventually, Biden’s going to confirm a judge, and he’s going to have trouble confirming any judges if Republicans still control the Judiciary Committee. The committee Chairs can play an outsized role in the budget reconciliation process. And Biden’s going to want to have Congress appropriate some money, and he’s going to want Democratic committee Chairs for that. So, eventually, something has to give on the budget resolution. And eventually, Joe Manchin is going to have to tell us whether he wants to be a committee Chair or whether he cares more about whatever esoteric objection he has to changing the Senate rules.

So, that’s the fight to watch. I think it’s a fight that’s likely to play out over the next several weeks and maybe not necessarily the next several days. But if you can’t get all the Democrats to stand together on the question of whether or not Mitch McConnell will accept the fact that there’s a Democratic majority, I don’t know what you’re going to be able to accomplish.

VALLAS: And the last question I’m going to throw at you, Ian, because I feel like you’ve really summed this up, I think, in a nice and kind of taut way. I’m going to make you be a betting man. I’m going to make you look in your crystal ball. What do you think’s going to happen? Are Dems going to do it? Is Manchin going to get there?

MILHISER: I mean, it’s a tough question. I wish that I could live in Joe Manchin’s brain for a while. Part of what I think makes this difficult is that Joe Manchin is really smart and is unlikely to be tricked by some fig leaf that, you know — I mean, he knows what the stakes are. He knows what it looks like to change the Senate rules and isn’t going to be tricked into doing it through some clever process. He needs to make the decision. And ultimately, I think Joe Manchin just needs to decide that he believes in democracy and that he believes in the notion that, you know, there was an election. We should have Democratic committee Chairs, we should have a Democratic Senate, because that’s what the voters voted for. And if he won’t do it for that reason, he should do it for purely selfish reasons because he’ll be a committee Chair once that organizing resolution passes.

VALLAS: Well, I lied to you openly and said that was the last question, but I can’t let you go without asking one more. Which is I’ve got to put up the straw man. What about folks who say, well, all this is fine and good and well? And sure, if the voters voted for a Democratic Senate, let’s let them govern. Let’s let it be Democratic. You got me, Ian. You’ve persuaded me with what you’ve said so far. But what about what happens two years from now? And is there a concern — as I remember the kind of concern being the last time Democrats were having this debate back in the 2000s — is there a concern that we’re handing the keys of destruction over to Mitch McConnell and a Republican Senate the next time it flips over if there isn’t a filibuster in place to protect against, say, repealing the Affordable Care Act or trying to give more tax cuts to rich people and wealthy corporations, as we know a Republican Senate will try and do the next time that they exist?

MILHISER: Right. So, I mean, my partial response to that is that if you believe in democracy, then you have to believe in democracy when it hurts. And so, if Republicans win an election fair and square, they should get to govern. And that means they’re going to pass some bills that I’m really not going to like. And the reason why I think that that’s acceptable is because, again, if they win a free and fair election, then you have to believe in democracy. That said, there’s several reasons why I think in the long run it’s a good idea to get rid of the filibuster.

One is that if Republicans actually get to enact their agenda, I don’t think it’s going to be pretty, it’s going to be popular. You know, if they actually take healthcare away from 30 million people, as they tried to do in the Trump administration, people are going to learn really fast that there are consequences when you vote for a Republican, and that could change voter behavior down the road. The second thing is that there is a ton of empirical research looking at international constitutional law and how different nations structure their government. The poly science term, political science term, here is veto points. So, the filibuster is a veto point, meaning that it is a point at which a policy change could potentially be blocked. And what the literature says is that nations that have fewer veto points have more robust welfare states. The government, you know, they have less income inequality. They just tend to be better, more fairer nations. And so, in the short term, I think what happens if you nuke the filibuster is that eventually, the Republicans get power, and they’re going to pass a lot of terrible bills and we’re going to hate it. But in the long term, what the scholarly literature says is that when left-of-center parties have the ability to pass good legislation, people decide they like that legislation. Conservative parties realize that they have to moderate because people like the left-of-center legislation. And you wind up with a permanent state of government that is more left wing.

VALLAS: And of course, if one of the results of nuking the filibuster, or modifying the filibuster in one of the ways you described, ends up being the passage of major democracy reform legislation, we could end up with a very different picture in terms of the reality of what the Senate looks like down the road and the chances of whether it falls back into Republican hands quite so often as it does, given that 41 million more people in the U.S. are represented by the Democratic half of the chamber, even though the split is still 50/50.

I’ve been talking with Ian Millhiser. He’s a Senior Correspondent at Vox.com and a good friend and a former colleague at the Center for American Progress who I miss. Ian, thanks so much for joining us to break this down. And I hope I didn’t keep you so long that now you have to pee. But I suppose it would’ve been longer if it’d been a filibuster!

MILHISER: Yeah, no. I think my bladder has held up at least as well as Ted Cruz’s.

[laughs] Ian, we’ll have you on soon. Thanks for this, and thanks for everything you’re doing to shed light on the path to saving democracy through nuking the filibuster. We’ll make sure that a bunch of your pieces, including the one that has all those huge numbers in it the 41 million number, are on our nerdy syllabus page so folks can check them out and double check your math.

MILHISER: All right. It’s so great chat with you, Rebecca.

VALLAS: And that does it for this episode of Off-Kilter, the show about poverty, inequality, and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas. The show is produced by Will Urquhart. Find us on the airwaves on the We Act Radio Network and the Progressive Voices Network, and say hi and send us your show pitches on Twitter @OffKilterShow. And of course, find us anytime on iTunes or wherever you get your podcasts. See you next time.

♪ I want freedom (freedom)

Freedom (freedom)

Now, I don’t know where it’s at

But it’s calling me back

I feel my spirit is revealing,

And now we just tryna get freedom (freedom)

What we talkin’ bout….

Off-Kilter is the podcast about poverty and inequality—and everything they intersect with. **Show archive 2017-May ‘21** Current episodes: tcf.org/off-kilter.