Democrats are finally taking their Senate problem seriously

Joe Biden's campaign is in an enviable position. President Trump's utter failure to contain the coronavirus pandemic, and his flailing attempts to distract from the avoidable disaster, have put Biden way ahead in the race. A recent New York Times/Siena College poll has him up by double digits in the three key swing states of Michigan, Pennsylvania, and Wisconsin.

However, things look less promising for Democrats if we turn to the Senate. They will need a big victory there to take control — and a gigantic landslide if they want to be able to break a filibuster, which requires 60 votes. Realistically, for a Biden administration to be able to govern effectively, they will have to abolish the filibuster, and likely make the District of Columbia and/or Puerto Rico a state.

There are some signs Democrats are beginning to take the Senate obstacle seriously, with growing talk of filibuster reform and a House vote to make D.C. a state. Whether they will follow through may well determine whether the United States survives into the medium term.

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Currently, Republicans hold a three-seat Senate majority. They have a tough Senate map this cycle, with 23 seats to defend as compared to just 12 for the Democrats. But none of them are in deep blue seats, while Democrats have to defend Doug Jones' seat in Alabama. The Cook Political Report rates the races in Colorado, Arizona, Maine, Montana, and North Carolina as toss-ups, and the ones in Georgia (where both seats are up thanks to a special election), Iowa, and Kansas as leaning Republican.

If Biden's big polling lead holds, Democrats should be able to pick up four seats on net without too much trouble (though it's not remotely a sure thing). But to get to 60, they would need 13 seats — requiring them not only to defend Jones and run the table on both toss-ups and GOP-leaning seats, but also pick up four more in deep-red states like Kentucky and South Carolina. That is just barely possible, but extremely unlikely. It would probably require Biden to win by a 15-20 point popular vote margin that hasn't been seen since the 1980s, before the development of modern hardened partisanship.

This difficulty reflects the fact that, thanks to historical happenstance and our crummy Constitution, the Senate has recently developed a marked Republican bias. Each state gets two senators regardless of population — thus a resident of Wyoming has nearly 70 times the Senate representation as California — and less populated, over-represented states have trended Republican over the last couple decades. The median state in Senate terms, North Carolina, leans 3 points to the GOP.

The Senate filibuster further entrenches this bias. Senators from just the 21 most conservative states can bottle up almost all legislation — the major exception for this being reconciliation bills, a complex procedure that can only be done once a year, and contains limits on what can be included. Even if a party has a filibuster-proof majority, the minority can still gum up the Senate calendar by constantly requiring time-consuming cloture votes.

The filibuster, in turn, is yet another accident of history. It came about only because when the Senate reorganized its rules in 1806, it accidentally deleted the clause allowing for debate to be ended by majority vote. It didn't even occur to anyone to try to halt legislation by endlessly talking for several more decades. For over a century afterwards, filibusters were primarily used by racists to stop civil rights legislation. Only during the Obama years did they become routine, with Republicans trying them on almost every piece of legislation (and now Democrats doing the same to Trump).

The Constitution states that "Each House may determine the Rules of its Proceedings[.]" It would be clearly constitutional for a Senate majority to simply vote to delete Rule 22 from the Senate rulebook, and be rid of the filibuster forever. Virtually every other legislative body in the world works by majority vote, and the Senate would be fine doing so as well. However, senators of all parties tend to get attached to their wretched institution, often referring to sentimental garbage about how the filibuster is about reasoned debate instead of blocking anti-lynching bills, and many Democrats have been reluctant to get behind such a move.

However, that may be changing. America is in the grips of a world-historical crisis. It will need a stupendous amount of work to even get back to the pre-coronavirus status quo, let alone address other festering disasters like police brutality, extreme inequality, climate change, and so on. It will be all but impossible to fix this country with Republicans able to jam up the wheels of government whenever they want. Thus as Ed Kilgore writes at New York, previous stalwart defenders of the filibuster, like Sen. Chris Coons (D-Del.), are beginning to change their tune. Coons, a close Biden ally, told Politico this week: "I will not stand idly by for four years and watch the Biden administration's initiatives blocked at every turn... I am gonna try really hard to find a path forward that doesn't require removing what's left of the structural guardrails, but if there's a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action."

Meanwhile, the movement for D.C. statehood has gotten fresh momentum lately. The House is expected to pass a bill granting statehood on Friday, and while it will certainly not be passed by the Senate or signed by Trump, it could be if Biden wins, Democrats take the Senate, and they abolish the filibuster. Even moderate Democratic elites are getting behind this move. The most important consequence would obviously be to provide congressional representation for the roughly 700,000 Americans who are currently treated like quasi-colonial subjects, but of course it would also add two Senate seats that would be safely Democratic and help redress that chamber's partisan skew somewhat. Adding Puerto Rico as a state as well (so long as its residents agree) would help even more.

Democrats have often been queasy at the prospect of doing what is both morally right and helps them politically — as if it's somehow illegitimate to enfranchise your own voters, or provide benefits for them. (Republicans, of course, think nothing of outright cheating by disenfranchising Democratic constituencies — indeed, it has become their key strategy for holding power.) But the plain fact is that the United States simply cannot afford another presidential term of do-nothing legislative gridlock. As historian Patrick Wyman writes, Trump's smoking ruin of a presidency has compounded a generation of previous mistakes and atrocities that now have us dangerously close to a full-blown crisis of legitimacy. Other countries in similar straits have seen mass political violence, civil wars, or simply fallen to pieces. If Democrats don't want to oversee the demise of the American republic, they better choose to govern, and fix the Senate.

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