“Thirty-one days into the new Congress and weeks after the Georgia Senate runoffs gave them 50 seats, Democrats now officially control the functioning of the Senate.
It took weeks of negotiation between party leaders to decide how Democrats and Republicans would share power and resources in the evenly divided Senate, as Senate Minority Leader Mitch McConnell stonewalled the process, trying to extract promises from Democrats about retaining the filibuster. That obstruction left Republicans chairing committees, despite the seating of a 50-50 Senate, in which Democrats, through Vice President Kamala Harris, hold the tie-breaking vote. But on Wednesday, the Senate finally passed an organizing resolution largely sharing power. The resolution was adopted by unanimous consent.”
“The belated passage of the organizing resolution eliminates the trouble Democrats ran into trying to confirm President Joe Biden’s Cabinet nominees without technically being seated as the majority. In the Senate Judiciary Committee, for example, incoming Chair Sen. Dick Durbin (D-IL) had to request that Sen. Lindsey Graham (R-SC) schedule a hearing for Biden’s attorney general nominee, because Graham still held the gavel. Graham rejected the request, underscoring the stakes of the hold-up over the organizing resolution.”
“Senate Minority Leader Mitch McConnell is no longer holding up the Senate organizing resolution — after two Democrats confirmed that they won’t be blowing up the legislative filibuster any time soon.
In the past few weeks, Senate Majority Leader Chuck Schumer and McConnell have been working to negotiate the organizing resolution — which governs committee membership and funding allocation — in the 50-50 Senate. The leaders had previously been at an impasse because McConnell had demanded that Democrats commit to keeping the legislative filibuster intact as part of the resolution — something Schumer was unwilling to do, since it would reduce the party’s leverage in negotiations over future legislation.
Since the organizing resolution could be filibustered — and would need 60 votes to pass — McConnell’s opposition effectively allowed him to block the measure from advancing.
And while he didn’t get the changes to the organizing resolution he wanted, McConnell’s approach still worked, in a way: Amid the impasse over the agreement, two Senate Democrats — Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — publicly restated that they would not vote to eliminate the filibuster. Without their backing, Democrats simply won’t have the numbers to do a rules change: All 50 members of the caucus would need to get behind a change to the filibuster for it to happen. (This position is consistent with stances both lawmakers have vocalized before.)”
“Even before last week’s deadly invasion of the Capitol, McConnell, to his credit, forcefully rejected efforts to challenge duly certified electoral votes for Biden. “If this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral,” he warned less than an hour before he was forced to flee the president’s enraged fans. “We would never see the whole nation accept an election again,” he added, and “every four years would be a scramble for power at all cost.”
Based on “sweeping conspiracy theories,” McConnell noted, “President Trump claims the election was stolen,” but “nothing before us proves illegality anywhere near the massive scale…that would have tipped the entire election.” He added that “public doubt alone” cannot “justify a radical break” from historical practice “when the doubt itself was incited without evidence.”
These were strong words, but they came two months too late. From the moment that Trump began insisting that he actually won the election by a landslide, it was clear that the president’s conviction had no basis in reality. Yet McConnell humored Trump, neither backing nor rejecting his wild claims, based on the premise that Biden’s victory should not be conceded until the president had exhausted his legal options and the Electoral College had met. In the meantime, the fantasy underlying last week’s riot grew and spread, unchallenged by all but a few Republican legislators.”
“Even McConnell and Pence are models of bravery compared to Sens. Ted Cruz (R–Texas) and Josh Hawley (R–Mo.), who led the legally groundless objections to Biden’s electoral votes in the Senate. In doing so, they cynically and recklessly reinforced the twin delusions that gave rise to last week’s violence: that Trump won the election and that Biden’s inauguration could still be prevented.
At the same time, neither Cruz nor Hawley had the guts to explicitly endorse those beliefs. They calculated that they could reap the political benefits of kowtowing to the president’s supporters without paying the political cost of looking like kooks. It apparently never entered the minds of these two Ivy League lawyers that they might pay a cost for so blatantly trying to advance their careers by sacrificing their supposed devotion to the Constitution. The crucial question for the Republican Party now is whether they were right to ignore that possibility.”
“After a week of hearings, it’s very unlikely that the public understands Barrett better now than they did on Monday, considering that the committee spent more time posturing than probing the judge’s judicial philosophy. Grandstanding may be an effective political strategy, but it didn’t tell us anything useful or significant about Barrett, and it won’t affect the outcome of her confirmation vote.”
“the Senate is an enormous problem for Democrats given the current political coalitions, in which Democrats are dominant in cities while Republicans triumph in rural areas. And because the Senate is responsible for confirming Supreme Court picks, that means the Supreme Court is a huge problem for Democrats too. Sure, Democrats might win back the Senate this year — indeed, they were slight favorites to do so before the Ginsburg news. But in the long run, they’re likely to lose it more often than not.”
“the overall U.S. population (including Washington D.C. and Puerto Rico) is split almost exactly evenly between these buckets: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.”
“Because there are a lot of largely rural, low-population states, the average state — which reflects the composition of the Senate — has 35 percent of its population in rural areas and only 14 percent in urban core areas, even though the country as a whole — including dense, high-population states like New York, Texas and California — has about 25 percent of the population in each group. That’s a pretty serious skew. It means that the Senate, de facto, has two or three times as much rural representation as urban core representation … even though there are actually about an equal number of voters in each bucket nationwide.”
“Since rural areas tend to be whiter, it means the Senate represents a whiter population, too.”
“In a strong national environment for Democrats, in other words, the Senate can be competitive. Generally speaking, at least. A Democratic-leaning environment wasn’t enough to overcome the Senate’s baseline GOP-lean and a bad map in 2018. Democrats lost seats. And in an average year — and certainly in a year like 2014 where Republicans have the advantage — Democrats face dire prospects in the Senate.”
“despite their current 47-53 deficit in the Senate, Democratic senators actually represent slightly more people than Republicans.”
“the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally. That’s likely to make the Republican majority on the Supreme Court pretty durable.”
“The Senate and Electoral College systematically underweight the votes of people of color — and the judiciary operates directly downstream of those biases. Washington, DC, home to the largest plurality of Black Americans in the country, is excluded entirely from federal representation. The filibuster has historically been used to block or delay anti-lynching laws and civil rights legislation”
“Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote. A 2019 study found that Republicans should be expected to win 65 percent of presidential contests in which they narrowly lose the popular vote, and could potentially win while losing the popular vote by as much as 6 percentage points. And this November, FiveThirtyEight’s Nate Silver calculates that Democratic nominee Joe Biden only has a 6 percent chance of winning the Electoral College if he wins the popular vote by 0 to 1 points, a 22 percent chance if he wins by 1 to 2 points, and less than a 50 percent chance if he wins by 2-3 points.”
“The Senate is even more extreme. In a 2019 Data for Progress analysis, Colin McAuliffe found that the Senate has a 3 percentage point tilt toward Republicans (double the 1.5 percent skew in the Electoral College). And that is probably an understatement — Silver recently calculated that the Senate is “effectively 6 to 7 percentage points redder than the country as a whole.” As my colleague Matt Yglesias points out, in 2014, Republican candidates won 52 percent of the popular Senate vote and gained nine Senate seats; in 2016, Democrats won 54 percent of the vote and gained only two seats; and in 2018, Democrats won 54 percent of the vote and lost two seats.
“Because the president appoints federal judges and the Senate confirms them, these biases are also reflected in the judiciary, where the Trump administration has already filled federal court benches with an unprecedented number of young, highly ideological conservative judges, including two Supreme Court justices.
It’s important to underscore the mechanism that generates and sustains this partisan bias: US political institutions systematically underweight the interests of nonwhite Americans.”
“Analyzing the results of the 2016 presidential election, statisticians Andrew Gelman and Pierre-Antoine Kremp found that “per voter, whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the other category.”
Behind the Senate’s partisan tilt is that it overrepresents people living in small states who tend to be whiter, on average, than people living in larger states. California, which has large Black and brown populations, and Wyoming, a predominantly white state, have equal representation in the Senate, despite the former having over 60 times more people than the latter.”
“this racial skew distorts policy preferences on issues ranging from gun control to the minimum wage to environmental policy. For instance, 48 percent of Americans believe controlling gun ownership is more important than protecting gun rights; however, when you weigh voter preferences as the Senate does — giving equal representation to each state — support for gun control drops a whopping 5 points, to 43 percent.
Why? Because the Senate overweights the preferences of white Americans, who tend to favor gun rights, and underweights the preferences of Black and brown Americans, who tend to favor gun control. By that same mechanism, McAuliffe finds that support for a $15 minimum wage also drops 5 points (from 58 to 53 percent), and a $100 billion yearly investment in green social housing drops 3 points (63 to 60 percent).”
“This is the status quo that Just Democracy’s coalition members aim to change — and they have a few proposals to do so.”
“The filibuster, which in its current form prevents a vote on legislation without 60 votes to cut off debate, was first used in 1837 during the controversy over the Second Bank of the United States, and it has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.
It is true that segregationists used the filibuster to oppose civil rights legislation in the 1950s and ’60s. Most famously, Sen. Strom Thurmond, then a Democrat representing South Carolina, spoke for more than 24 hours to impede passage of the Civil Rights Act of 1957, which aimed to protect the voting rights of African Americans in the South. Southern legislators—including Sen. Robert Byrd (D–W.Va.), an ardent defender of Senate traditions—also used the filibuster in an unsuccessful attempt to block the Civil Rights Act of 1964, which banned segregation in public schools and racial discrimination in voting requirements, employment, and places of public accommodation.
But that is just a snapshot of the filibuster’s potential uses, which can be either malign or beneficial, depending on the target and one’s view of the legislation’s merits. Just as the principle of federalism does not qualify as a “Jim Crow relic” simply because segregationists invoked it, the filibuster cannot be deemed irredeemable simply because they found it useful. Like other restraints on the majority’s will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president’s assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws. Whether you think its net impact is good or bad is apt to depend not only on which party happens to be in power but also on your general view of the work that Congress does.
The filibuster was not part of the original constitutional design. It arose from a rule change that Vice President Aaron Burr urged in 1805. As George Washington University political scientist Sarah Binder explained during a 2010 Senate hearing, Burr thought the chamber’s rule book was cluttered with unnecessary provisions, including what was known as the “previous question” motion, which it turned out could be used to close debate with a simple majority. Unlike the Senate, the House of Representatives retained that rule.
“Today, we know that a simple majority in the House can use the rule to cut off debate,” Binder said. “But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, ‘Get rid of the previous question motion,’ the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.” In other words, “the filibuster was created by mistake.””
“In 1917, Woodrow Wilson, outraged by Republican senators’ filibustering of his proposal to arm merchant ships as a deterrent to German U-boats, demanded reform to disempower this “little group of willful men.” The Senate responded by adopting Rule 22, which empowered a two-thirds majority to cut off debate—a compromise between Democrats who favored a simple-majority rule and Republicans who resisted any change. In 1975, the Senate reduced the majority required for cloture from two-thirds to three-fifths, or from from 67 to 60 votes in a chamber with 100 members.”
“the Senate has always been unequal, long giving less populous states an outsized voice relative to their population.1 But for more than a century, this hasn’t posed much of an issue: Until the 1960s, Republicans and Democrats competed for both densely and sparsely populated states at roughly the same rate
But over the last several decades, that’s changed. The parties have reorganized themselves along urban-rural lines, and there is now a clear and pronounced partisan small-state bias in the Senate thanks to mostly rural, less populated states voting increasingly Republican. In fact, it’s reached the point that Republicans can win a majority of Senate seats while only representing a minority of Americans.”
“Much of this follows from the post-civil rights realignment of American partisan politics, in which the Democratic Party became more consistently liberal (and thus more appealing in big, largely urban states), and the Republican Party became more consistently conservative (and thus more appealing in small, largely rural states). But that gap has also widened in recent years, especially starting in 2015, when Republicans took back a Senate majority, flipping seats in small states like West Virginia, South Dakota, Arkansas, Alaska and Montana — all states that will be tough for Democrats to regain in 2020.”