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In a recent essay, I argued for abolishing the filibuster. The reasons are powerful. It’s not part of our Constitution and never has been. It’s antidemocratic. Although its original intent was only to delay legislation, modern Congresses have grotesquely abused it, converting it into a routine minority veto. In the few years of our new century, minorities of 41% or greater have used the filibuster to veto legislation at 142 times the average rate from 1917 to 1972.
The new Democratic Senate can eliminate filibusters with a simple majority vote. But two Democrats— Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—have said they would not vote to abolish it. Former majority leader Mitch McConnell also has reportedly been trying to extract a promise from current Majority Leader Chuck Schumer not to abolish it. McConnell is apparently leveraging his power to bargain over selecting the chairs and committee assignments in an evenly divided Senate, with Vice-President Harris presiding to break tie votes. As usual, he’s trying to play hard ball.
Of course Leader Schumer should not give in. If he made the promise, he would give up his chief leverage over the Republican caucus. Fortunately, there are ways to circumvent the filibuster that may not have been fully explored.
Bills appropriating money can avoid the filibuster by using a so-called “budget reconciliation” process. But what about bills that don’t involve money, on such subjects as mandates for mask wearing and social distancing or protection of citizens’ voting rights?
One answer is that recalcitrant states badly need money for pandemic relief and economic recovery. Congress’ power to impose conditions on its grants of money is, according to an authority, “well established.” The “conditions must be related to the federal interest for which the funds are expended[,]” and Congress must not force unconstitutional activities on the states. If they meet these requirements, the conditions are constitutional.
For example, Congress could condition grants of money for vaccines and pandemic relief on a state imposing mask-wearing and social-distancing mandates on its people in accordance with federal guidelines. Or the conditions could include specific benchmarks in testing, contact tracing and quarantining . These conditions are “related to the federal interest” in reducing the spread of and suffering from the pandemic. They don’t require unconstitutional activities because states have broad power to restrict their citizens’ liberty for the sake of public health.
As Ezra Klein has argued, Democrats’ most important agenda item, after pandemic relief and economic stimulus, is making sure that every citizen has the ability to vote and vote easily. That’s an item on which all else ultimately depends.
To ensure that ability, Congress could condition grants to states on their providing: (1) voter registration by mail; (2) automatic registration upon receiving a new or renewed driver’s license or registering a car; (3) universal voting by mail upon request, without any reason; (4) early voting for weeks or a month before each election ; and (5) election days that fall on a Sunday or public holiday. On what kind of grant could Congress impose these conditions?
Pandemic relief might be too big a stretch. So might a general economic stimulus. But grants for the purpose of buying voting equipment, supporting electoral staff, and securing the vote against electronic hacking and physical interference no doubt would be “related to the federal interest” in secure and proper voting.
In addressing our racially biased incarceration epidemic, there are two ways to circumvent the filibuster. For federal offenses, the President could issue an executive order setting up a commission within the Department of Justice to review criminal convictions and sentencing for compliance with minimum requirements for controlling racial bias and avoiding excess. In cases that violate those requirements, the President could use his unreviewable power to pardon the convict or commute the sentence. For state offenses, Congress could condition grants to states for prison construction and maintenance, and for law enforcement generally, on their setting up and following similar state systems, with similar minimum requirements, for pardons or commutations by their governors. So constrained, state systems might even be preferable to DOJ review of state actions, as they would avoid control by “outsiders” and encourage “buy in” by state officials.
Similar approaches are possible in fighting global warming and pollution arising from electric-power generation. Congress could, for example, pass a $ 3 trillion clean-energy bill, providing money for states and localities to procure and install solar arrays, windmills, energy-storage devices and a smart grid to connect them. Instead of imposing effluent controls on existing coal- or gas-fired power plants, Congress could condition these grants of money—and all the good jobs they would fund—on states phasing out their polluting fossil-fueled plants pari passu with the federally funded renewable sources of electric power, kilowatt for kilowatt.
Of course it would be best to kill the filibuster. It’s an absurdly outrageous insult to majority rule, and it’s been absurdly abused in practice, especially recently. But the best need not be the enemy of the good.
In this terrible time, the federal Congress is in the driver’s seat. Unlike state legislatures, most of which must balance their budgets each year, Congress can borrow to spend. The states desperately need money, because their economies are collapsing under the pandemic’s pressure.
Coincidentally, Congress’ exercise of its unique ability to borrow and spend is free from the filibuster under the special Senate rules for “budget reconciliation.” So by combining much-needed grants of money with lawful conditions on them, Congress can make an end run around filibusters that might block attempts to impose those same conditions separately as positive law.