FOR PRESIDENT JOE BIDEN to sign a $1.9trn stimulus bill this week was an economic gamble—on inflation, the Federal Reserve and the capital markets. But politically, it was a dead cert. The Democrats, though in control of Congress and the White House, can pass only rare budgetary bills, under a procedure known as reconciliation. Any other legislation could be blocked by a filibuster, which requires a bill to muster a supermajority of 60 Senate votes. Because covid-19 is unpredictable, the stimulus had to be big enough to deal with new variants. Because the administration might not get another chance, the plan smuggled in pet priorities. Because, under the rules, it was not subject to scrutiny in Senate committees, Republicans made no contribution. It is a terrible way for the world’s leading democracy to pass laws.
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Congress is not the only political institution under strain: elections are, too. After Donald Trump’s victory in 2016, some Democrats thought the result was manipulated by Russia. After Mr Trump’s defeat in 2020 a large majority of Republicans accepted his baseless claim that the vote had somehow been stolen. Motivated by that conviction, Republicans in 45 states have since introduced bills to tighten election laws. For their part, Democrats in the House have already passed HR 1, which if enacted would rein in state Republicans, by imposing federal voting standards instead. But the bill will not get through Congress as long as the Senate has the filibuster.
Thus the task of fixing America’s democracy enmeshes both voting in the Senate and voting in the country at large. When politics is infected by bad faith, that can make the situation worse. If the rules of politics became the main field of combat, the system itself could come to seem even more illegitimate to voters. However, it is a bit late to worry about that. As the assault on Congress on January 6th suggests, a struggle over procedure and voting is already under way. America must emerge better able to govern itself without resorting to once-a-session monster-bills. As a result, the incentives which reward bitter partisanship could be tempered—including through voting reform. Fortunately, this is not an idle hope.
American democracy looks tired. In 2010 Freedom House, a sort of ratings agency for democracies, gave America a score of 94 out of 100; its latest rating is 11 points lower. The Economist Intelligence Unit, our sister company, puts America 25th in its rankings, behind much younger democracies that it helped create such as Germany, Japan and South Korea. The judgment of America’s own voters, which is what matters most, is even harsher. According to the Pew Research Centre, a think-tank, the share who trust the federal government always or most of the time has fallen to just 20%, compared with scores in the 30s and 40s in the Reagan era.
One cog at the heart of this creaking engine is the filibuster, a parliamentary convention that the Senate has increasingly come to rely on over the past century. Plenty of parliaments ask for a supermajority to change the constitution, but nowhere else requires one for routine legislation. Despite that, its supporters in Congress, many of them institutional conservatives, see it as a brake on hasty lawmaking that encourages bipartisanship. They say that scrapping it would invite a seesawing of legislation from one election to the next.
Take these arguments one by one. By making lawmaking so hard, the filibuster often prevents the kind of changes that conservatives want. The proof of that is the fact that, except for a piece of emergency covid-19 legislation, the Trump administration was able to get only one ambitious bill through Congress—a tax cut, also under reconciliation. By favouring stasis, the filibuster channels power from the legislative branch to the president and the Supreme Court, which also ought to alarm constitutional conservatives.
The claim that the filibuster encourages bipartisanship is no longer true. Barring that covid law, no bill has passed with a bipartisan, filibuster-proof majority in the Senate in more than a decade. More often it kills bipartisanship. Sometimes a handful of Democrats or Republicans are open to voting with the other side, but not enough to get to 60. Rather than handing power to moderates across the aisle, the filibuster more often takes it away from them. That kills compromise.
The risk of seesawing laws is real, but other democracies seem able to tolerate it. Indeed, the passing of legislation is a vital part of how voters hold governments to account. By contrast, the filibuster lets politicians campaign on divisive, hare-brained policies knowing that they will never have to enact them, and hence take responsibility for them.
Ideally America would scrap the filibuster completely. Although that needs a simple majority, because it is a procedural rule, it is unlikely because at least two Democratic senators want to keep it. Yet they may be ready to carve out exemptions, as happens today with tax bills and judicial nominations. One reform would be to require legislators to talk on the Senate floor for a long time if they want to delay legislation, as in the past, rather than just placing a hold on a bill. That could clear a path for voting reform with HR 1.
This, too, should be a priority. State Republicans argue that their changes will safeguard elections, but many look like attempts to change the rules in their favour. In Georgia, for example, Republicans have passed a bill restricting Sunday voting, which by an amazing coincidence is when many churchgoing African-Americans vote. HR 1 would restrict the ability of state parties to game voting laws. It also asks presidential candidates to disclose their tax returns and ends gerrymandering, which enables politicians to redraw district boundaries once a decade. It is not perfect: it lets political operatives collect mail-in ballots, for example. But, suitably amended, it need not harm Republicans disproportionately. And besides, making voting easy and secure ought to be the aim of any party committed to democracy.
A bold reform risks unforeseen consequences. But the United States is no longer viewed as the beacon of democracy it once was. To renew itself at home and set an example abroad, America needs to roll up its sleeves and get on with the repairs. ■
The filibuster is an oddity that harms American democracy (Mar 2021)
America’s battle over election laws (Mar 2021)
Joe Manchin, the wild man of the mountains (Mar 2021)
We are also tracking the Biden administration’s progress in its first 100 days
This article appeared in the Leaders section of the print edition under the headline “How to renew America’s democracy”