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The ticking filibuster: How to stop 'minority rights' from becoming 'minority rule'

The ticking filibuster: How to stop 'minority rights' from becoming 'minority rule'
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Early in the 117th Congress, Sens. Joe ManchinJoe ManchinIn Congress, what goes on behind closed doors? Jayapal to Dems: Ditch bipartisanship, go it alone on infrastructure Harris discusses voting rights with advocates in South Carolina MORE (D-W.Va.) and Kyrsten SinemaKyrsten SinemaIn Congress, what goes on behind closed doors? Pelosi urges Democrats to pass voting rights bills: 'The clock is ticking on our democracy' Sinema breaks her foot running marathon MORE (D-Ariz.) vowed to protect the filibuster, calling it necessary to “find compromise and get things done” and to “find common ground.” Perhaps this approach was worth trying at the start of the session, but that time has passed. Week by week, month by month, the 117th Congress is slipping away. And with even the most uncontroversial legislation now failing to get 60 votes, Manchin and Sinema must choose: Do they want a representative government or the filibuster? They can’t have both.

In theory, the filibuster should expand the representativeness of government. By Manchin’s and Sinema’s lights, requiring 60 votes encourages senators to work across the aisle, bring more voices to the table, and honor the views of the most Americans possible.

But this “small-r” republicanism requires mutual commitment — a minority willing to work with the majority. If the minority can simply hold the majority hostage, representative government is subverted, not served. Elected officials only hold power for a limited time. Sacrificing the will of the many to that of the few in this brief period defeats the point of holding elections.

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If Manchin and Sinema want to protect minority rights without surrendering to minority rule, the purpose behind delays must matter. Time spent building a broader consensus is not the same as time spent merely obstructing. This is where unconditional allegiance to the filibuster falls short. 

Take Democrats’ signature democracy reform. In March, the House passed H.R. 1 — the For the People Act. In April, Manchin claimed there was “bipartisan support for … many of the initiatives outlined in the For the People Act.” Now, in June, Manchin has given up on the For the People Act entirely. How did each of the parties spend this intervening time? Which of the "many initiatives" that supposedly had secret Republican support in April did Democrats refuse to put into a narrower bill?

The answer is none. From March to June, Republican senators have relentlessly attacked the bill, offering no meaningful alternative or narrower proposal. Democratic senators, meanwhile, heard input from Republican and Democratic officials throughout the country and prepared responsive changes. Yet, when many of those amendments came to a vote in committee, Republicans rejected them too. Why? Because Republicans didn't want to improve or narrow the bill; they wanted to kill it.

In response, Manchin pivoted to another bill. Predictably, Republicans shot that down too. Why compromise when you can insist on your own terms? As Sen. Chuck GrassleyChuck GrassleyHouse unveils antitrust package to rein in tech giants Iowa governor questions lack of notice on migrant children flights to Des Moines Senate crafts Pelosi alternative on drug prices MORE (R-Iowa) allegedly reported to constituents, “We think we’ve got [Manchin] nailed down.”

The filibuster isn’t facilitating cooperation — it’s enabling minoritarian capture. Whatever merits it might’ve had when used on rare occasions (and its racist history shows “compromise” isn’t always noble), the modern filibuster is now used so frequently it undermines the very goal that Manchin and Sinema hold dear: consensus-building.

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If Manchin and Sinema actually want mutual compromise, they need to start offering more than carrots to Republicans and sticks to Democrats. Back in April, Manchin wrote that "Senate Democrats must avoid the temptation to abandon our Republican colleagues," but he also said Republicans "have a responsibility to stop saying no and participate in finding real compromise." If Manchin were willing to enforce both sides of this deal, his paeans to bipartisanship would not ring so hollow. But for now, he has given Republicans no incentive to meet Democrats halfway.

So, what to do? 

First, filibuster reform needs to be on the table. The filibuster was not part of the Founders’ design, and ending it outright would still leave the Senate a more potent brake on majoritarianism than many at the Constitutional Convention wanted (the Connecticut Compromise was, after all, a compromise) or could have imagined. In 1790, the largest state (Virginia) had roughly 11 times the population of the smallest state (Rhode Island). Today, California has 69 times the population of Wyoming. And that’s to say nothing of the Senate’s staggered six-year terms. So, no, ending the filibuster would not turn the Senate into the House.

Second, if Manchin and Sinema are serious about bipartisanship, they should propose reforms designed to boost cooperation before it’s too late. Manchin and Sinema won’t always hold this power over the filibuster’s fate. Whether Republicans regain control or Democrats expand their majority, the days of the filibuster as we know it are numbered. Manchin and Sinema can either fix the filibuster now or see it discarded entirely later.

Two frequently floated reforms are to restore the “speaking filibuster” or require the minority to muster 41 votes. These reforms would make obstruction harder but wouldn’t necessarily encourage cooperation. For cooperation to make sense, the minority must have some skin in the game. 

One way to incentivize the minority to come to the table with constructive amendments is to use a “ticking filibuster.” A ticking filibuster would require 60 votes on the first cloture motion but would reduce the number of votes required on any future motion by 1 for each week that passes. 

How would this help? If the majority proposes an extreme bill, the minority can slow them down — and nine weeks provides plenty of time to propose alternatives. If, however, the majority proposes broadly popular legislation and the minority makes unreasonable demands, the majority can wait them out. This encourages the minority to offer constructive amendments as early as possible to influence the final product. And if the majority rejects reasonable input, moderate members of the majority can increase pressure on their own party by threatening to vote against final passage itself.   

This arrangement would create an enduring institutional way to strike a balance that respects minority rights without capitulating to minoritarian rule. 

Manchin and Sinema could even test-drive this method with democracy reform. Various commentators have urged Democrats to propose a narrower bill. And given Manchin's objection to the Senate version of the For the People Act, perhaps now they should. But, from there, the onus must be on Republicans to propose alternatives and explain what initiatives they will support. If Republicans still fail to offer constructive amendments or a viable alternative within, say, four weeks, then Manchin and Sinema must be wiling to pass the bill under a filibuster exception.

Requiring the minority to come to the negotiating table isn’t unfair or unrepublican. Elections have consequences. And bipartisanship means giving the minority a chance — not control. When a government allows the minority to consistently override the majority from one election to the next, it cannot be called a representative government at all.

G. Michael Parsons is a program affiliate scholar at New York University School of Law and an expert on constitutional law and the law of democracy. He previously served as associate director of lawyering (2020-2021) and an acting assistant professor (2018-2021) at NYU Law. Follow him on Twitter @GMikeParsons.