Note: the Jimmy Stewart filibuster is almost entirely a thing of legend/fiction and most “filibusters” are procedural actions that come with very little cost in time and effort.
As James Joyner noted in a post yesterday, the legislative filibuster is likely to go the way of the Dodo should the Democratic Party win control of the Senate in the upcoming election. The reason is pretty straight-forward: it will be the only way to get anything done legislatively.
Let me respond to/expand on something James noted in his post:
as shrewdly and shamelessly as McConnell has wielded power, he didn’t eliminate the filibuster over ordinary legislation in the early part of Donald Trump’s presidency, when Republicans held the White House, House of Representatives, and the Senate and could therefore have rammed through anything they wanted. He did in fact take a longer view.
So, why did McConnell “take a longer view” and not scuttle the filibuster during the previous congress so as to give the unified Republican majority an easier pathway towards legislating? His long view was not about maintaining established norms, his long view was about maintaining a Republican advantage.
Plus, note, the Republicans were able to get their main legislative goal, tax cuts, through while maintaining the filibuster. Their only major legislative defeat was their inability to “repeal and replace” Obamacare, something that has always seemed more slogan than coherent goal.
Consider that at the moment, and for the foreseeable future, the Republican Party is actually a minority party in the sense that nationally, Democrats tend to win more votes than do Republicans. For example, as I have noted numerous times of late, the GOP has only won the national popular vote for President once since doing so in 1988 (in 2004 when George W. Bush re-elected). That is one time in over thirty years. Of course, the Electoral College helps tilt the playing field back in the GOP’s direction, as it did in 2000 and 2016.
The GOP is also at a disadvantage in winning control of the House of Representatives, which is predicated largely on population. Caveats apply, such as the way in which single seat districts cause problems for representation. Indeed, in two recent elections, 1996 and 2012, the party that won fewer votes nationally won the majority of seats in the House (both times, the GOP).* Single seat districts lead to over-emphasis on non-urban districts, which favors the GOP (this is the issue of geographic sorting). Gerrymandering also creates distortions that would not be present if we used even moderate proportional representation with multi-seat districts.**
The Senate, of course, with its two seats per state, is not dictated by national partisan preferences but still can very much favor one party over the other. It stands to reason that the more rural-oriented, conservative party would do better in the Senate, since the Senate privileges, in terms of representation, those kinds of voters. This advantages the Republicans, at least in this current era of our politics.
The quick tour through partisan advantages and disadvantages in national legislative and executive elections is to underscore that the Senate is a linchpin, if not a fail-safe, for the GOP and the legislative filibuster is a huge part of that scenario. As long as the legislative filibuster remains in place, the Republicans know that all they really need to forestall any substantive policy change is 41 seats in the Senate, which is practically guaranteed.
Note that getting the 60 vote majority is nearly impossible to achieve, so the GOP knows that as long as the filibuster remains in place, it can stop most of what a Democratic House might vote out, even if the Democrats also control the majority in the Senate.
It is worth noting that since the 1970s capturing 60 votes (which was common in the 1960s) in the Senate is much like capturing unicorns. The Democrats did have 61 seats back in the 94th (1975-1977) and 95th (1977-1979) Congresses. But, of course, that was a) in the wake of Watergate, and b) when the South was almost solidly Democratic.
We have only seen one other case of a 60-vote majority since then (well, actually two): during the 111th (2009-2011) Congress.
Note that in the 111th Congress, during Obama’s first term, the Democrats controlled 60 votes only for a brief amount of time in two different windows. The exact details are in the linked post, but the summary is that “the Democrats had a 60-seats majority (and true control of the Senate) from July 7, 2009-August 25, 2009 and from September 25, 2009-February 4, 2010.”
In simple terms: a 60-vote majority just isn’t normal nor is it likely.
So, what we have are two institutions that favor majority preferences (the House and the Presidency), but with caveats, and one that favors minority preferences (the Senate).
And, the Senate has long had an institutional mechanism, the filibuster, that has made it a significant veto gate in our policy-making process, one that has increasingly been used in our era of polarized parties. It is a veto gate that is practically impossible to unlock because there is no culture of consensus-building in the Senate, and specifically the GOP of this era is not especially interested in legislating (rather, in the Senate, they are mostly focused on confirming judges, which already lack a filibuster route for the opposition).
In short, the Republicans have every incentive to want to maintain the ability of 41 Senators to essential be able to block almost*** every legislative action in the Senate, while the Democrats have increasingly come to the realization that they are better off to take advantage of unified government when it happens (since it is more likely for them) or to hope, at least, that they control either the House and/or the presidency when the GOP controls the Senate.
Even shorter: the filibuster far more helps the Reps and constrains the Dems than anything else, and hence it can’t last.
As such, I figure if the Democrats win unified government in November, the filibuster is gone.
*Some additional discussion of this in my 2018 post, The US’ Flawed Democracy
**And yes, gerrymandering helps Democrats in some cases as well.
***There are some legislative actions, such as budget reconciliation, that are not subject to a filibuster.
