A Silver Lining, Perhaps

The arguments Democratic senators made last night to reform the filibuster, e.g. by returning to the “talking” filibuster that can delay legislation as long as the minority keeps arguing against it, meaning that a bill can’t be stopped in its tracks by email, were so good that the refusal of two “Democratic” senators to vote for reform is either the result of stupidity or base motives.

If they truly believe the filibuster fosters bipartisan solutions, they are stupid. If they think the country will be better off with Republicans having total electoral control in various states, possibly resulting in the return of the worst president in history — whether he wins or not — they are horrible people. (We shouldn’t rule out the likelihood that they’re both stupid and horrible.)

Anyway, Paul Waldman of The Washington Posts looks on the bright side:

For years, Democrats have been waiting for Republicans to have their “epiphany,” to realize that scorched-earth politics and implacable opposition to anything a Democratic president might suggest are not good for the country. The epiphany has arrived — but it’s the Democrats who have finally come to understand reality, and are prepared to act accordingly.

This might seem like a moment of Democratic defeat [it sure as hell does]. But it could be a turning point, one that leads to more progress in the future.

At his Wednesday news conference, President Biden was asked whether he had over-promised and what he planned to change in the remainder of his term. In response, he said, “I did not anticipate that there’d be such a stalwart effort to make sure that the most important thing was that President Biden didn’t get anything done.”

Lots of people anticipated it — it has been a topic of debate for years, and Biden took a lot of criticism in the 2020 campaign from those who thought his claim that he could persuade Republicans to work with him was disingenuous or naive. Every reasonable observer knew that [Republicans] would approach his presidency with the same strategy it used with Barack Obama: Oppose almost everything the president proposes, and do everything in the party’s power to make him fail.

But what matters at the moment isn’t whether Biden ever believed [Republicans] would act differently. It’s that he seems ready to stop pretending that a dawn of bipartisan cooperation is about to break.

Now consider what happened that night, when Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) joined with every Republican to shoot down a rules change that would have allowed two voting rights bills — bills Manchin and Sinema claim to support — to receive an up-or-down vote.

It was absolutely a defeat, for Biden, for his party, and most of all for voters. But it also represented a significant shift within the Democratic Party. That’s because every single Democrat apart from Manchin and Sinema supported setting aside the filibuster.

A variety of factors led them there. The obstructionism and radicalism of today’s [Republican Party] certainly played a part. Perhaps just as important, we’ve had our first real, detailed debate about the filibuster, and all the arguments in its defense were revealed to be so preposterous that it has become almost impossible for any honest person to oppose reforming it.

As Sen. Amy Klobuchar (D-Minn.), a more moderate Democrat, explained in a passionate plea, the Senate has adjusted filibuster rules to allow majority votes more than 160 times, including for such pressing matters as “approving compensation plans for commercial space accidents.”

So with two exceptions, every member of the Democratic caucus, from progressives such as Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) to moderates such as Jon Tester (Mont.) and Angus King (I-Maine), agreed that the filibuster has to change here as well.

There was nothing like that kind of unanimity even a year ago. That glass is now 48/50ths full.

And the defeat of these voting rights bills, which is extremely painful for both Democratic legislators and their party’s base, might actually hasten the filibuster’s demise.

As I’ve noted, in every state where Democrats have a chance to take a Republican Senate seat, all Democratic primary candidates favor scrapping the filibuster. That includes both moderates and progressives. Though there are many things that divide, for instance, Rep. Conor Lamb and Lt. Gov. John Fetterman in Pennsylvania, they agree the filibuster should go.

Democrats, including the president who has spent so much time insisting that he can achieve bipartisanship, are simply done waiting for Republicans to see the light. The next step is for them to get mad enough to do something about it.

Which might happen. Even though the most likely outcome in 2022 is a Republican sweep (following the usual midterm election pattern), Democratic voters can and should be angry enough about the death of these voting bills — among many other things, including the Supreme Court’s likely overturning of Roe v. Wade this year — to organize, register and overcome Republican voter suppression to get to the polls in November.

If you’re a Democrat and you’re mad at Manchin and Sinema — and you should be — the answer is to make them irrelevant by electing a few more Democrats to the Senate.

Besides, they’ll probably be around for only a few more years. Manchin might not run for reelection in 2024, and if he does, he’ll probably lose, as long as Republicans find a halfway decent candidate in deep-red West Virginia. And after this, Sinema couldn’t win a Democratic primary for dogcatcher; if she runs again the same year, she’ll face a strong primary challenge [the latest poll shows she has an 8% — eight percent — approval rate among Arizona Democrats].

So it’s not hard to imagine the Senate considering voting rights again in the near future — and this time, there will be 50 votes to pass it.

Thanks to Manchin and Sinema, and to Republicans who remain just what they’ve been all along, Democrats can no longer afford to delude themselves about how politics works today. And for a change, they all know it.

The Best Argument Against the Filibuster: It’s Unconstitutional!

There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?

Manchin, Manchin, Manchin, Maybe, Maybe, Maybe

Since all 50 Republican senators are opposed to even debating voting rights legislation, the only way for the current Senate to protect democracy is for all 50 Democrats to agree to change the filibuster. One “Democrat” who hasn’t agreed yet is the Maserati-driving, coal-loving senator from West Virginia. Greg Sargent of The Washington Post says there might still be a glimmer of hope regarding Sen. Manchin and voting rights:

By now, you’d be forgiven for concluding the chances of Sen. Joe Manchin III supporting a filibuster carve-out to pass democracy protections are somewhere between nonexistent and extremely nonexistent.

The West Virginia Democrat has spent many months chasing after Republican support for legislation protecting voting rights and democracy, and virtually none has materialized. Yet he continues to insist he won’t support any sort of filibuster reform, even to pass legislation he himself champions that would accomplish something he himself says is essential [it’s not clear he knows the meaning of “essential”].

But in an interesting twist, some Senate Democrats still haven’t given up on Manchin. Though the story all over Twitter is that Waiting For Manchin is utterly hopeless, they’re still trying to win him over.

I’m told Manchin and a dozen other Senate Democrats met with an expert on Senate rules and discussed various ways of carving out a filibuster exception or otherwise reforming it to allow passage of voting rights legislation. . . . 

The ideas included looking at how to change the rules specifically to pass voting rights protections by a simple majority threshold, a Senate Democratic source who shared details of the meeting told me. The source added: “Manchin is engaged.”

The expert whom Manchin and other Democrats met with is Martin Paone, who has three decades of experience in Senate staff positions, the source tells me. Paone will also attend Friday’s caucus meeting among Senate Democrats, where this will get further discussion.

These meetings are separate from another set of meetings going on among Senate Democrats that doesn’t involve Manchin.

Manchin supports a reasonably good package of democracy protections, including things such as automatic voting registration, various curbs on voter suppression and election subversion, limits on partisan gerrymandering, and baseline standards to facilitate voting by mail. Elections expert Richard L. Hasen has declared a package like this worth supporting.

The dynamics on Manchin and the filibuster are more complicated than it seems from the outside. According to a voting rights advocate who has been in discussions with Manchin and other Democratic senators, the basic contours of the situation are as follows.

First, Manchin remains reluctant to support anything seen as a “slippery slope” to ending the filibuster entirely. So it’s more likely he’d support reforms that stop short of a full carve-out of the filibuster to pass voting legislation. Such reforms could include requiring the minority to hold the floor to sustain a filibuster . . . 

The advocate says Manchin is more open to ideas [that] can legitimately be described as “restoring the filibuster” [to what it used to be, i.e. a way to delay a vote, not block it].

This would be a good argument. After all, a filibuster can now be executed simply via an emailed statement from a single senator. That’s obviously a ridiculous state of affairs that allows the minority to render the Senate dysfunctional for bad-faith purposes while escaping procedural difficulties in doing so, and even evading public accountability for it.

Still, . . .  pulling the trigger on broad reforms [that would increase] the burden on the minority is complicated. Manchin could decide a carve-out just on voting rights is simpler in the interim, the advocate says.

Here’s another nuance. A second source who has been informed about discussions between Manchin and other senators tells me Manchin seems open to arguments that cast filibuster reform as a response to partisan procedural abuses.

In this conception of the situation, that source says, the fact that the Senate can’t pass voting rights legislation “shows that the institution is fundamentally failing,” precisely because it “used to do so on a broad bipartisan basis.”

What’s more, this source says, this sort of filibuster reform wouldn’t be about “passing the left’s priorities,” but instead about “passing changes that are basic to the functioning of democracy.”

Manchin appears open to these arguments as a longtime advocate for bipartisanship in the Senate, the source says, because here it’s obvious the filibuster is being used to further partisan efforts to close down pro-democracy reforms that used to be a bipartisan no-brainer.

And of course, this really is the essence of the matter. Manchin really has spent months in a good-faith effort to win over GOP support for democracy protections that he really does believe are essential to making the system function better.

The only [Republican] senator who has appeared marginally interested in participating is Lisa Murkowski of Alaska. The fact that virtually the entire GOP is uninterested — while GOP state legislatures are passing restrictions on voting everywhere by simple majority — should have weight for Manchin.

Because after all, if democracy reform must be bipartisan, as Manchin says — yet virtually no Republicans will participate, no matter how earnestly Manchin seeks their support — then sticking to that notion is tantamount to allowing Republicans to single-handedly remove democracy reform from the agenda entirely, on a purely partisan basis.

That can’t be acceptable, by Manchin’s own lights.

To be clear, there are still reasons for extreme skepticism that Manchin will ever get to yes. But if he somehow does, these routes might be the way he gets there.

The Disappointing State of Play in the Senate

The Brookings think tank has a page that explains the US Senate’s filibuster. This is a key section:

“Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered” [meaning the measure won’t be debated, voted on or adopted].

“While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate. Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.”

Unquote. The upshot is that senators cannot filibuster the two things Republicans most care about, appointing judges and cutting taxes (odd how that worked out). 

To avoid a Republican filibuster, the Democrats are trying to use the budget reconciliation process to pass Biden’s very important Build Back Better act by a simple majority (meaning 50 Democratic “yes” votes, followed by Vice President Harris voting “yes” to break the 50-50 tie). But one Democratic senator still won’t provide the 50th vote the Democrats need. 

They also want to pass voting rights legislation to protect what’s left of American democracy. They can’t use the budget reconciliation process for voting rights, so they need a different way to get around a Republican filibuster. The only way to do that is for the 50 Democrats (and VP Harris) to change Senate rules to make voting rights legislation an exception to the filibuster (in the same way judges and tax cuts are exceptions). But one or two Democratic senators still won’t provide the 49th and 50th vote the Democrats need. 

From today’s Crooked Media “What a Day” newsletter:

With Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) blocking passage of the Build Back Better Act, Senate Democrats have gamely pivoted to the voting-rights legislation also blocked by Manchin and Sinema. Get in, loser, we’re going nowhere in a different direction! 

  • Final negotiations on the reconciliation package appear to have ground to a halt, as Manchin’s objections to temporary programs (including the temporary child-tax-credit extension) and overall price tag thwart Senate Majority Leader Chuck Schumer’s plan to get it passed by Christmas. The final monthly payment authorized under the current expanded child tax credit went out on Wednesday; Congress would need to extend the program by December 28 to keep the payments on track in January. 
  • Anxious to get something done, some Senate Democrats have announced a new push to pass their elections bill, despite still needing unanimous agreement on changing filibuster rules to do so. Schumer said on Thursday that he hopes to get voting legislation passed “in time for the 2022 elections,” tacitly acknowledging that there’s no way a bill makes it to President Biden’s desk before the end of the year. 
  • On the one hand, Sen. Raphael Warnock (D-GA) made a terrific point on the Senate floor this week, after lawmakers approved a filibuster [exception] to raise the debt ceiling: “I believe that it is misplaced to change the Senate rules only for the benefit of the economy when the warning lights on our democracy are flashing at the same time. I happen to believe that our democracy is at least as important as the economy.” Hard to fault that logic!

On the other hand, there’s no indication that Manchin and Sinema have come around to the rule changes necessary to pass the bills they say they support. 

  • Manchin indicated on Tuesday that he’s still not open to reforming the filibuster to pass voting-rights legislation unless there are Republican votes to do so, to the gleeful cackles of Republicans everywhere. A Sinema spokesperson ruined everyone’s holidays by announcing Wednesday that she “continues to support the Senate’s 60-vote threshold,” though Democrats are discussing narrow filibuster reforms and not outright abolition, so it’s worth noting that Sinema’s office also called for “the Senate to publicly debate its rules, including the filibuster, so senators and all Americans can hear and fully consider such ideas, concerns, and consequences.” It’s not, like, a lot of hope, but at this point we’ll settle for vaguely hope-scented. 
  • Schumer may not have an obvious plan to get voting bills passed before the midterms, but he’s right to want to. Democrats may have owned themselves out of their House majority by refusing to gerrymander as aggressively as Republicans in the handful of states where they had the chance, in the absence of redistricting reforms. The decision of just five blue states—California, Colorado, New Jersey, Virginia, and Washington—to switch over to nonpartisan redistricting commissions will cost House Democrats 10-15 seats, according to trusted redistricting nerd Dave Wasserman. It’s entirely possible that Republicans will gain control with a smaller margin than that.

To quote Sen. Mazie Hirono (D-HI) this morning, “a 50-50 Senate sucks and we can’t get things done.” Rather than unconvincingly pretending otherwise until it’s time for another vacation, Senate Democrats might as well be clear about the fact that two of their members are abetting the GOP assault on democracy, and at some point make them go on the record about it.

America Is a Failed Democracy: A Primer (It’s Long But Essential)

. . . the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. 

Those are the words of Laurence Lessig, a Harvard law professor, writing for The New York Review of Books. If you want to understand the ways this country has failed at democracy, read what follows. The features of minority rule discussed below include gerrymandered state legislatures and congressional districts, vote suppression, political action committees, the Electoral College, the Supreme Court, the Senate and the filibuster:

What’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state.

At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.


The corruption of our majoritarian representative democracy begins at the state legislatures. Because the Supreme Court has declared that partisan gerrymandering is beyond the ken of our Constitution, states have radically manipulated legislative districts. As Miriam Seifter . . . summarized in a recent article for the Columbia Law Review, “across the nation, the vast majority of states in recent memory have had legislatures controlled by either a clear or probable minority party.” Her work was based in part upon an extraordinary analysis published by the USC Schwarzenegger Institute, which found that after the 2018 election, close to 60 million Americans “live under minority rule in their US state legislatures.” The most egregious states in this mix are also among the most important in presidential elections. In Wisconsin, for example, the popular vote for Republicans in 2018 was 44.7 percent; but Republicans controlled 64.6 percent of the seats in the statehouse. Likewise, Republicans in Virginia won just 44.5 percent of the vote but received 51 percent of statehouse seats.

State legislatures, as Seifter characterizes them, are “the least majoritarian branch” of our representative democracy. Yet this fact is all but invisible to most Americans—including, as she evinces, justices on the Supreme Court. We are all outraged when the Electoral College selects a president who hasn’t won a plurality of votes, something it has done five times in its history. Why are we so sanguine about legislatures that are regularly controlled by the party that won fewer votes across the state?

These gerrymandered states then spread their minoritarian poison in two distinctive ways. First, they have taken up the most ambitious program of vote suppression since Jim Crow. Through a wide range of techniques, Republican state legislatures are making it selectively more difficult for presumptively Democratic voters to vote, by reducing the number of polling places in Democratic districts, by ending early voting or voting outside of ordinary working hours, by deploying biased ID requirements that selectively allow forms of identification commonly held by Republicans (gun club registration cards) while disallowing those held by likely Democratic voters (student cards), by understaffing polling places so voters must queue for hours to vote, and by many other creative techniques. In Georgia, the legislature has even made it a crime to give water to people waiting in line to vote. What possible legitimate state interest could that law serve?

These acts are often framed by their opponents in racial terms. That framing is a strategic mistake. I’m happy to stipulate that some who push these techniques of suppression may well be motivated by race—after all, many of the techniques were those of race discrimination before —though most would surely disavow any such thing. But every single person pushing these techniques of suppression is certainly motivated by politics. It is raw partisan power, driven to destroy the electoral prospects of the other party, that explains what is happening here. Before the United States Supreme Court, Justice Amy Coney Barrett asked lawyers from the Republican National Committee why they were opposing provisions enabling more people to vote. Because it “puts us at a competitive disadvantage,” the lawyer was untroubled to reply. How can it be permissible for the party in power nakedly to rig the system against its opponents?

The second way that minoritarian state legislatures spread their poison is by gerrymandering the United States House of Representatives. Partisan gerrymandering was first perfected in its modern “big data” form by Republicans in 2010, and the Democrats then spent the following decade trying to get the Supreme Court to put a stop to it. When the Court announced it would not, there was little left for the Democrats except good government initiatives, aiming at moving the redistricting process away from the most egregiously partisan influences. That did some good—until the 2020 election signaled to Republicans that their party faces virtual annihilation if the majority gets its say. The efforts to gerrymander for 2022 will therefore be the most sophisticated seen yet. Barring a legislative miracle to safeguard voting rights, by the next presidential election Republicans will have secured through gerrymandering the control of the House of Representatives, whether or not they succeed in winning more votes than Democrats. And if the plans of some extremists come to fruition, a critical mass of state legislatures will also have passed laws by then that give them the power to overturn the results of a popular presidential election in their states.

These two techniques of minoritarian rule—gerrymandering and partisan vote suppression—could have been resisted by the courts. Yet what’s striking about the United States Supreme Court is not only that it has done nothing to resist minoritarianism but also that its most significant recent interventions have only ratified perhaps the most egregious aspects of our minoritarian democracy: the influence of money in politics.


While most mature democracies have various techniques for minimizing the corrupting effect of money in politics, the US Supreme Court has embraced the most radical conception of campaign money-as-free speech of any comparable democracy. While the Court has upheld limitations on direct contributions to political campaigns, it has simultaneously held, in its infamous decision in Citizens United v. FEC (2010), that any limitation on independent spending violates the First Amendment. Lower courts have then read Citizens United to mean that any limits on contributions to independent political action committees would violate the First Amendment as well. These rulings together gave rise to the so-called Super PACs that now dominate political spending, and enable strategic coordination of influence that is more effective than spending alone. In 2020, for example, the ten top Super PACs accounted for 54 percent of outside spending.

What’s critical to recognize is that the real power of this money comes not from its effect in persuading voters. Its power comes instead from the dependence it creates within our political system. Candidates know they need the support of Super PACs, either to make the case for them or to defend them from others who would attack. That dependence produces enormous power in the Super PACs concentrated in the hands of a tiny number of very wealthy individuals (who are presumptively but not necessarily Americans). In a nation of hundreds of millions, a few hundred families now dominate political spending.

Here again, there is no shame. In June 2021, the political action committee (PAC) No Labels had a call with Senator Joe Manchin, Democrat of West Virginia, about legislative priorities in the balance of the year. On the call, the founders of the PAC emphasized the power their group had in Washington—not because of their ideas, but because of their money. The ultra-wealthy donors supporting No Labels were able to “hand out $50,000 checks,” its cofounder, Andrew Burskey, bragged. And those checks, he explained, represented the most valuable money in any political campaign. This was “hard” money, money given to candidates directly, which FEC rules allow the candidates to spend themselves. And then to prove just why that money was so valuable, Burskey offered the incredibly revealing picture of just why the economy of influence in Washington gave the ultra-wealthy so much power in Congress. As he explained:

[Most House members] are spending four hours on the telephone, dialing for dollars. And so what [a large contribution from donors] does—aside from sending the very strong message that there are folks who will have your back if you take tough votes that . . . may not be popular within your party—it also in real life frees them to do more work, because it’s spending less time raising those funds.

Burskey is remarking upon the obvious dependence that exists with our current system for campaign finance: the dependence of representatives on fundraising. Because of that dependence, particular kinds of funders—namely, large funders—are especially valuable. Large contributors give members two things at the same time: first, and obviously, money; but second, and even more critically, time. A $50,000 contribution gives members of Congress the chance to breathe, even as it naturally obliges them to [serve] the interests of the person who enabled that chance.


The legislative branch, of course, is not the only minoritarian institution within our republic. Because of the way states allocate Electoral College votes, the executive branch is effectively minoritarian, too. Not just in the most egregious way, when the candidate who wins fewer votes nonetheless becomes the president, but also, and more significantly, in the most regular way: because of the way states allocate their Electoral College votes, it is only a tiny fraction of American voters who actually matter to the ultimate result. All but two states give the winner of the popular vote in their state all of the electors from that state. This means that the only states that are actually contested in any presidential election are the “swing states,” at most a dozen or so of the fifty in the union. Those swing states represent a minority of America—less than 40 percent of the electorate depending on the election. That minority is in turn radically unrepresentative of America itself. The voters in the swing states are older and whiter. Their occupations are more traditional. For example, seven and a half times more people work in solar energy in America than mine coal, yet we never hear anything about solar energy industry workers as an important political bloc in a presidential campaign because those people live in non-swing states like Texas and California. Coal miners live in battleground states, so they become the central focus of the candidates running for president.

It is thus this tiny, unrepresentative minority that effectively selects the occupant of the Oval Office—making the president, as political scientists (such as Douglas Kriner and Andrew Reeves) have shown, especially responsive to this unrepresentative few. Federal spending is higher, all things being equal, in swing states over non-swing states, and regulators are particularly accommodating of swing states’ regulatory concerns. Does America tinker with steel tariffs or ethanol subsidies because either policy makes any sense? No. We live with these policy vagaries because their beneficiaries live in Pennsylvania and Iowa (both swing states).


And so, too, with the courts: if any institution within a representative democracy is supposed to be minoritarian, or at least, counter-majoritarian, courts are. That is true substantively, but it is not supposed to be true politically. Substantively, of course, courts are meant to uphold constitutional rights, regardless of popular majorities. My First Amendment right to speak should not depend upon whether my views are liked by a majority. But the institution of the judiciary is also populated through political action. And to the extent that those actors have power because of a minoritarian corruption of representative democracy, the courts they populate are likewise tainted by minoritarianism.

Consider the Supreme Court: the current bench is divided 6–3, with the majority dominated by extremely conservative justices. That division is in no sense representative of America. Two thirds of the US is certainly not “conservative.” And while the random nature of Supreme Court turnover can sometimes produce such unrepresentativeness, this Court was expressly constructed by Senate leaders who changed the norms of confirmation to effectively steal a Supreme Court seat. In February 2016, then Majority Leader Mitch McConnell declared, after Justice Scalia’s death, that it was “inappropriate” to confirm a nominee of President Barack Obama’s because it was an election year. But when Justice Ginsburg died just six weeks before an election, McConnell declared that it was perfectly appropriate to rush a nominee through the Senate before the 2020 election. In record time (for a modern appointment), Justice Amy Coney Barrett—certainly among the most conservative of the justices now seated on the Supreme Court—was confirmed by a Republican Senate.


Yet, without doubt, the most extreme institution of minoritarian democracy in America today is the United States Senate. Of course, that flaw was in a sense intended: the only way small states were going to agree to the new Constitution in 1787 was if the Constitution gave them extra power. That compromise enraged James Madison, but he could read the political writing on the wall and eventually became a defender of this counter-majoritarian compromise at the heart of our republic.

Even then, though, the minoritarianism built in to the Senate was muted in the first century after the Constitution’s signing. It was muted first because the differences in states’ populations were much smaller than they are today. The largest state in 1790 (Virginia) was thirteen times more populous than the smallest (Delaware). Today, the largest (California) is sixty-eight times more populous than the smallest (Wyoming). But it was muted second, and more fundamentally, because until this century the Senate did not regularly block the will of the majority of senators. The original Senate rules expressly protected the power of the majority, a simple majority, to vote on any bill whenever it wanted. It was only when Senator John C. Calhoun, the proslavery Democrat of South Carolina, began to muck about with those rules fifty years after the Constitution was ratified that the will of the majority was placed in jeopardy.

We miss this fact because the technique of this blocking has a name that has long been part of Senate lore: the filibuster. And given the tactic’s long pedigree, it is easy to imagine that what we are talking about today is the same as existed in the Senate for most of the institution’s history.

The reality is radically different.

The filibuster that existed for most of the Senate’s history was a device that simply slowed the consideration of legislation. It didn’t kill it. The one exception to that characterization was civil rights legislation: the only examples of laws being blocked by filibuster all the way through 1965 were anti-lynching laws, and laws to improve civil rights. For the rest, the filibuster simply delayed the debating and passage of legislation. And for that delaying tactic to operate, the Senators supporting the filibuster had to do real work: if a Senator was to filibuster a bill, he would have to stand on the floor of the Senate and speak, for many hours without a break. Strom Thurmond, Democrat of South Carolina, held the floor for twenty-four hours to hold up the 1957 Civil Rights Bill. That was not mere showmanship as House Minority Leader Kevin McCarthy’s recent eight-hour filibuster was. It was the only way that a filibuster could have any effect.

Today, however, the mechanism of the filibuster is radically different. All a senator must do to assure that a bill is filibustered is make a request to their party leader. That request—which can literally be by e-mail or text—then shifts the bill from being one that will pass if a simple majority supports it to being one that cannot even be debated unless a supermajority of sixty senators supports it.

The effect of the old filibuster was to keep a bill on the floor of the Senate as the filibusterers were debating. That allowed their dissent to be better understood, if not in the Senate, then at least by the public. The effect of the new filibuster is exactly the opposite: its effect is to block any debate until a supermajority allows it. Thus, the For the People Act—a bill that would have reversed much of the state suppression of the vote, ended partisan gerrymandering, and changed fundamentally the way campaigns are funded—has been blocked from debate on the floor of the Senate now twice, even though a majority would vote to allow that debate to occur. This modern filibuster thus doesn’t enable debate or understanding. The modern filibuster is just a gag rule on any legislation a minority does not like.

Even this description, however, masks the real corruption in the system. The norms that limited the filibuster to important issues are gone. Both parties killed those conventions over the past twenty years, the Republicans more aggressively than the Democrats. The filibuster has now become a routine hurdle that any significant legislation must clear. What that means is that we have now introduced a procedural requirement into the passage of legislation that makes the process more institutionally minoritarian than that of any legislature in any comparable representative democracy. Senators from the twenty-one smallest and most conservative states, representing just 21 percent of America, now have the power to block any non-budget legislation.

This filibuster lock alone—setting aside all the gerrymandering in the states, the gerrymandering of Congress, the suppression of the vote in elections, the Electoral College, the corrupting dependence of money—would be enough to categorize America as a “minoritarian democracy.” Like segregationist or sectarian regimes such as South Africa under apartheid, or the Sunni rule of Baathist Iraq, or Syria under the Alawi, the American republic, originally designed to be a majoritarian representative democracy, has become minoritarian. Or more precisely, at every level of the current institutions of our representative democracy, we have rendered those institutions unrepresentative. This fact alone should be enough to lead aspiring democracies around the world to look elsewhere for models for how democracy might be made to work. Our only lesson for these democracies is the consequence of our own failure.


In 1997, after he had surprised the world by winning reelection decisively, Bill Clinton convened a small dinner with the top donors to the Democratic Party at the Mayflower Hotel in Washington, D.C. What should he do in his second term? What did they think he could achieve? It was a moment of great hope and possibility—nine months before the revelations of a White House intern would deflect the administration from achieving anything of significance.

As the story is told, about thirty of America’s super-wealthy sat around a table. The president asked each in turn to give him their views. One by one, they rose to speak. The last to rise was a businessman, the founder of Stride Rite Shoes, and the second-largest contributor to the Democrats in 1996. As he stood up, few had any sense of what he would say. When he sat down, few could believe he’d actually said what he did say.

“Mr. President,” Arnold Hiatt began, “I know you’re an admirer of Franklin Delano Roosevelt. So I want you to put yourself in FDR’s shoes in 1940—the year when Roosevelt realized that he was going to have to convince a reluctant nation to wage a war to save democracy. Because that, Mr. President, is precisely what you need to do now—to convince a reluctant nation to wage a war to save democracy.” That would not, of course, be a war against fascists. It would be a fight against fat cats—people like Hiatt, rich people, and people who believed (unlike Hiatt) that just because they are rich, they’re entitled to dinner with the president at the Mayflower. Hiatt was challenging the president to recognize that “current campaign finance practices are threatening this nation in a different, but no less serious way,” he said. . . . There was silence when Hiatt finished. No doubt, some were uncomfortable. . . .

At the time Hiatt spoke, Citizens United was still more than a dozen years in the future. We had not yet seen the pathological gerrymandering of 2010. Few could have imagined the open efforts by partisans in state legislatures to suppress the votes of their political opponents. Not a single Republican in any state legislature was then considering legislation to allow state legislatures to override the popular vote for president. And though the filibuster had been deployed beyond the domain of civil rights by then, it would be nine years before the architect of the modern filibuster, Mitch McConnell, would be elected to lead his party in the United States Senate. And no one—literally, no one—could have imagined an event like January 6 taking place in the United States of America. From our perspective today, Hiatt spoke at a time of relative health in the American democracy. And yet to him, and to many others then—including an eighty-eight-year-old woman who, nine months later, would begin a 3,000-mile walk across the country with the words “campaign finance reform” emblazoned across her chest—the corruption of money was already reason enough to “wage a war to save democracy.”


Today, we confront a Republican Party that has effectively declared war on majoritarian democracy. At every level, the leadership of that party challenges the fundamental idea of majority rule. Rather than adjust their policies to appeal to a true majority of Americans, Republicans have embraced the minoritarian strategy of entrenching what has become, in effect, a partisan, quasi-ethnic group against any possible democratic challenge. They rig the system so the majority cannot rule.

In the face of this threat, what America needs is what Hiatt said FDR had been: a leader who could “convince a reluctant nation to wage a war to save democracy.” Or maybe better, what America needs is a leader like Winston Churchill, who could convince a distracted nation that there is a fundamental threat to our democracy that we must now wage war to save.

Yet we don’t have a Churchill leading this fight. We have a Chamberlain. Rather than name the threat, and rally America against it, President Biden has been keen to negotiate the differences in conciliatory fashion—as if the modern filibuster were not a fundamental threat to democracy and as if the fight against majoritarianism were not a threat either. Biden has been eager to engage in a bizarre nostalgia, recalling a golden age when white men from different parties somehow got along, rather than recognizing that American democracy has never faced a threat like one—even if this is precisely the political reality that Black Americans have known for all of the country’s history.

There was real hope this year for effective action to address this corruption of democracy. Every single major candidate for president in the Democratic Party in 2020 (with the exception of Kamala Harris) had committed to making the For the People Act a top priority in the first hundred days; some had promised even more. Speaker Nancy Pelosi maintained that momentum and passed the act in the House. And after she succeeded in the House, Majority Leader Chuck Schumer committed to getting the Senate to do the same.

Standing in the way, however, was the filibuster.

For most of this year, President Biden defended the filibuster and stood practically silent on this critical reform. He has focused not on the crumbling critical infrastructure of American democracy, but on the benefits of better bridges and faster Internet. Democratic progressives in Congress were little better on this question. Although Alexandria Ocasio-Cortez, Bernie Sanders, and Elizabeth Warren all supported the For the People Act, in the public eye the issues they’ve championed have overlooked the country’s broken democratic machinery: forgive student debt, raise the minimum wage, give us a Green New Deal…. As a progressive myself, I love all these ideas, but none of them are possible unless we end the corruption that has destroyed this democracy. None of them will happen until we fix democracy first.

It may well be that nothing could have been done this year. It may well be true that nothing Biden could say or do would move Senators Joe Manchin and Krysten Sinema, the two who are apparently blocking reform just now. Yet we have to frame the stakes accurately and clearly: if we do not confront those imperfections in our democracy, openly and transparently, we will lose this democracy. . . . [i.e. what’s left of it].