Nuking The Filibuster May Hurt Republicans In The Long Run

The Supreme Court filibuster just died. Having failed to break a Democratic filibuster on the nomination of Neil Gorsuch to the Supreme Court, Republicans voted 52-48 to invoke the so-called nuclear option, allowing debate on Gorsuch and future Supreme Court justices to be ended by the Senate on a simple majority vote.

Unless there’s an intense public outcry — and there was barely a peep when Democrats invoked the nuclear option for other nominations four years ago — the legislative filibuster might be next on the chopping block. Republican Majority Leader Mitch McConnell has said he’ll keep the legislative filibuster for the current Congress. But with the intense partisanship that typifies Congress these days, the reverence for Senate traditions such as the filibuster isn’t likely to hold much longer.

In the short run, this will give Republicans and their narrow majority in the Senate more power. Gorsuch is expected to be confirmed on a mostly¹ party-line vote on Friday. President Trump may get the chance to nominate additional Supreme Court justices later in his term. And if Republicans decide to eliminate the legislative filibuster somewhere down the line, they’ll have more flexibility on repealing and replacing Obamacare,² tax reform and other policies.

But in the long run, it’s not at all clear that eroding the filibuster will be in the GOP’s best interest. In the recent past, they’ve made more effective and more frequent use of it than Democrats ever did. Consider some of the additional legislation that might have passed had the filibuster not been in place during President Barack Obama’s time in office. The list includes the DREAM Act, a cap-and-trade system to regulate carbon emissions, a gun-control compromise bill and a “public option” as part of Obamacare. Democrats would probably also have been able to pass an even more aggressive stimulus package if not for the de facto 60-vote requirement.

These episodes illustrate a couple of points. First, political fortunes can change in a hurry. It was only eight years ago that Democrats had 59 or 60 seats in the Senate. But also, there may be some asymmetry in when and how the filibuster is invoked and which party it hurts the most. Historically, the filibuster has been used — both by Southern Democrats and by Republicans — to stymie progressive legislation, such as during the Civil Rights era. And in general, if Democrats and liberals are hoping to bring about change, while Republicans and conservatives are hoping to preserve the status quo, impediments to change such as the filibuster will hurt Democrats more.³

So if eliminating the filibuster pays clear dividends to Republicans in the short run, and potential benefits to the Democrats in the long run, the question is: How long until we get to the long run? In other words, how long might we expect it to be before Democrats control the Senate again? And would a Democratic Senate coincide with having a Democratic president?

This requires making some medium-to-long-range forecasts, which is obviously a dangerous exercise. But we can cover the problem in some very broad strokes. First, we can look at how long a party typically maintains control of the Senate. Beginning with the 66th Congress in 1919, which was the first one in which all members of the Senate had been chosen by direct election rather than being appointed by their states, the Senate has changed control 12 times, not counting a brief interval when Democrats controlled the Senate in January 2001 because George W. Bush had not yet been sworn in as president.

On average, the Senate has changed hands once every eight years; the median time required for a change is about six years. Or here’s a slightly different way to frame the question: Given that Republicans will already have controlled the Senate for four years at the end of the current Congress, how much longer might we expect them to control it? The answer — again based on the historical data you see above — is an average of six additional years or a median of four additional years beyond January 2019.

So to give you a very rough answer, the long run begins somewhere between four to eight years from now.

But we can perhaps very tentatively dip our toes in and try to game out how the next few election cycles might go, given the current political conditions. Here are a few obvious things we know:

• Republicans currently control the Senate 52-48, and they have Vice President Mike Pence’s tie-breaking vote.
• Trump won 28 states despite losing the national popular vote, so 56 of 100 senators are from states Trump won. This reflects the fact that sparsely populated rural states have the same number of senators as highly populous coastal ones and perhaps means that the GOP has a geographic advantage in the Senate. As is the case with the Electoral College, however, it’s not clear whether this is a long-run advantage for Republicans or was something more peculiar to the circumstances of the 2016 election.
• Trump is historically unpopular relative to other presidents at this point of their terms, and midterm elections are usually pretty tough on the president’s party. So the GOP is swimming into something of a current.
• There are some big imbalances between the three classes of senators. More than 70 percent of the seats up for re-election next year are held by Democrats. But about two-thirds of the seats up in 2020, and then again in 2022, are held by Republicans.

Let’s consider how this might play out:

Who will control the Senate after 2018? Republicans will still control the presidency. And they’ll probably also still control the Senate. While Democrats would only need to gain three seats to control the Senate, they face the very difficult map I mentioned above, with only nine Republican seats to target but 25 of their own ones to defend. Having Trump in the White House is a blessing for vulnerable red-state Democrats such as Sen. Claire McCaskill of Missouri, who can run as a check on Trump’s power instead as of a validator of Hillary Clinton’s agenda. So Democrats might do pretty well in defending their own seats. But finding three Republican pickups is tough. Arizona and Nevada are the most obvious chances for Democrats, but after that they’re probably hoping to pick up (gulp) Ted Cruz’s seat in Texas. Or (double gulp) Orrin Hatch’s in Utah? Or they’re hoping for a retirement that could prompt a special election that is not currently scheduled yet. None of this is quite impossible, but it’s unlikely.

Who will control the Senate — and the presidency — after 2020? Ordinarily, the presidency doesn’t change hands after just one term, but betting markets — no doubt looking at Trump’s poor approval ratings — actually have Democrats as slight favorites to win the 2020 election. I’m not sure I totally buy that, but let’s say the next election is roughly in the vicinity of a toss-up. Will whichever party controls the presidency have the Senate to go along with it?

If it’s Republicans, the answer is probably yes. Although they might lose — or gain — a seat or two at the midterms (see above), they’ll probably enter the 2020 election with about the same 52-48 majority that they have now. And if the Republican’s candidate (whether it’s Trump or someone else) is doing well enough to win the presidency, the GOP will probably do well enough in the Senate to hold their majority. Remember, these outcomes are highly correlated, with down-ballot outcomes tending to follow top-of-the-ticket ones.

By the same token, however, a Democratic president would probably be accompanied by a Democratic Senate. The 2020 map offers decent opportunities for them, with 22 Republicans up for re-election but just 11 Democrats. Most of the Republicans are in deeply red states. But there are some decent opportunities for Democrats, including GOP-held seats in Colorado, Maine, North Carolina, Georgia and Iowa. Plus the new vice president would be a Democrat in the event of a 50-50 tie.

Could the Senate change hands again after the 2022 elections? If we’re really gaming things out, it’s worth noting that the 2022 Senate map is relatively favorable for Democrats. That’s because the same seats up for re-election as in 2016, which was also a good map for Democrats, will be up again. Democrats flipped only Illinois and New Hampshire last year, but at various times, they also had designs on GOP-held seats in Florida, Ohio, North Carolina, Pennsylvania, Wisconsin, Arizona, Missouri and Indiana, and they’ll target many of the same states in 2022. Republicans have a shorter list of plausible targets, including New Hampshire, Nevada and Colorado. But a Democratic president would probably have an easier time holding a narrow majority than a Republican one.

This is beginning to devolve to the point of ridiculousness, but that’s sort of the point — electoral politics are not all that predictable more than a couple of years in advance. We know that Republicans control the Senate now and that they will probably still do so after next year’s midterms. Beyond that, conditions are highly uncertain. By this definition, then, the long run begins on Jan. 20, 2021. Today could be the start of a decadeslong conservative majority on the Supreme Court. Or it could be the day that led to the Democrats’ passing a single-payer health care plan, or a $15 national minimum wage law, on a 51-49 party-line vote through a filibusterless Senate. If, over the long run, the filibuster has hurt Democrats more than helped them, perhaps they should bid it good riddance.