The most consequential decision that Democrats make before the midterm elections in 2022 may not be which pieces of legislation to introduce but whether to they succeed in killing one. I’m referring specifically to the filibuster.
While changes are coming, they won’t be nearly as extensive as one might expect. And the filibuster is to blame.
Democrats have gained control of the Oval Office, the Senate and the House after having campaigned on issues like health care, economic inequality, immigration, gun control, environmental protection and political reform. Americans could therefore be forgiven for assuming that Democratic-backed policies will start sweeping the country.
But while changes are coming, they won’t be nearly as extensive as one might expect. And the filibuster is to blame.
Use of the filibuster in the Senate in essence means that 60 votes are needed to pass any measures other than lower court judicial nominations and some budgetary legislation. To use a recent example, millions of Americans voted for the president, members of the House and state senators. But in the end, which legislation lives and dies depends largely on whether Democratic senators can keep their members together and persuade 10 Republican senators to vote with them. If that sounds like a terribly anti-majoritarian system, that’s because it is.
Although many senators on the left have decried the practice, there’s one thing to keep in mind: While Democrats may hate the filibuster now that they’re in the majority, it could be one of the only tools in their toolbox if and when they lose that slim majority in the Senate.
Imagine that after the 2024 elections we have a Republican in the Oval Office and Republicans control both the Senate and the House. At this point, it will be the Democrats, not the Republicans, who will wish to employ the filibuster.
The fate of the filibuster will determine the future of our country more than any one piece of legislation.
One of the few powers Democrats would have to prevent the Republicans from implementing their agenda would be to filibuster legislation. The fate of the filibuster will determine the future of our country more than any one piece of legislation.
The use of the filibuster has real and profound consequences. Just look at the Democrats’ first legislative priority, electoral and political reform. The House recently passed, for the second time, H.R. 1, known as the For the People Act — the biggest political reform package that our country has seen in well over a decade.
The bill would implement significant changes to our electoral and voting systems. If we have learned anything from the 2020 election, it’s that the right to vote should not be taken for granted.
As many Americans experienced recently, it is much harder to vote in some areas than others. Even if you can cast a ballot, that ballot may not have the same force and effect as a ballot cast by others in or out of your state. Specifically, it may be harder to make your voice heard in some areas because of the way district lines were drawn in your state through gerrymandering. And when you’re casting that ballot, which may or may not be diluted by gerrymandered districts, we need to ensure that if it is validly cast, it will be counted free of security breaches.
If that sounds like a terribly anti-majoritarian system, that’s because it is.
In another lesson from 2020 (and frankly, the past few decades), even before you think about casting your ballot, there’s something else to worry about: the pervasive influence of money in politics.
It takes a lot of money to run for federal office. This means it’s easier to run for office if you are wealthy or have a pre-existing network of financial support. It also takes a lot of time to raise money — time spent talking to people who can and want to spend money in politics, as opposed to time spent talking to potential constituents. It’s therefore no surprise that it can at least appear that politicians are more responsive to this so-called donor class than to the average constituent. In addition, much of the money spent in our elections isn’t necessarily transparently disclosed to the public. This shields pertinent information from the public about who is seeking to influence their would-be elected officials and who stands to benefit from their election or defeat. The For the People Act is long and complicated, but in essence it addresses many of those bigger problems. The bullet points: In short, the bill, if implemented, would change elections and politics in America in specific and concrete ways. There are certainly rational discussions to be had about the details, including whether there are areas in which the bill goes too far. But we don’t need to have that rational discussion about the pros and cons of the bill, because it is very unlikely to pass. How could this be? A rational American would surely think to herself, now that there is a Democrat as president and a Democratic-controlled Congress, changes like those in H.R.1 are coming. And then that rational American remembers one all-important word in American politics: filibuster. Here we are, with a minority party happy to use the filibuster to thwart much-needed electoral reforms and a majority party that seems loath to eliminate the filibuster. Democrats are likely to keep the filibuster because of lack of political will, fear of what will happen once they are in the minority, or both.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
