legislative

WASHINGTON — If Democrats win control of the Senate and White House in November, many progressives want to get rid of a long-standing Senate rule — the legislative filibuster — to ensure that their agenda in a Joe Biden presidency isn’t foiled by Republicans’ obstructions.

That would allow legislation to pass with 50 votes instead of the 60 required in recent decades for any significant initiatives. Whether to abolish or scale back the filibuster is one of the most consequential decisions Democrats would make, affecting the prospects for bills on healthcare, climate change, guns, immigration and more.

Proponents say the filibuster has been grossly misused, undermining the Senate’s effectiveness, and they believe Republicans would use it to block anything Biden tried to achieve. But critics in both parties warn that ending the filibuster would damage the Senate as an institution, and allow the majority to steamroll the other party.

What is the filibuster, and why does it matter?

The filibuster is a political blockade by a united minority to prevent a Senate vote on a bill. In recent decades, when the minority party won’t relent in its opposition, the majority must hold a so-called cloture vote — requiring a supermajority of 60 votes — to break the blockade and permit the Senate to act on the pending legislation.

Ideally for the minority party, if the majority can’t muster 60 votes, either it must compromise with the minority or its legislation dies.

Why do progressive Democrats want to get rid of the filibuster now?

If Democrats win a majority, they will almost certainly have fewer than 60 votes. Presumably Senate Majority Leader Mitch McConnell (R-Ky.) — if he wins reelection — would become the minority leader and instruct Republicans to filibuster any progressive legislation that comes before the Senate, much like he did as minority leader in President Obama’s first six years.

“We don’t think Mitch McConnell should be allowed to weaponize partisan obstruction … to prevent any opportunity to make the changes that the American people want,” said Eli Zupnick, spokesman for Fix Our Senate, a coalition of progressive groups advocating to eliminate the filibuster.

Among their Senate allies is Sen. Jeff Merkley (D-Ore.). “I’m holding conversations with [senators] saying, ‘Are we going to have a functioning legislative body or not?’” he said.

Will Senate Democrats actually end the filibuster?

That’s unclear. But an increasing number of Democrats have become supportive.

Sen. Jon Tester (D-Mont.) wants to keep the filibuster, but acknowledged that moderates like him could change their minds if Republicans use it to block a Democratic majority’s legislation.

“I didn’t come here just to watch somebody stonewall,” he said. “If it’s like the economy is going to hell and we’re not doing anything to help, that’s not healthy.”

Given the hesitance of those like Tester, few expect Democrats — if they’re the majority — to have enough votes to change the rules when the new Senate convenes in January. More likely, momentum would build if Republicans repeatedly filibuster.

Democratic leaders, including Sens. Richard J. Durbin of Illinois and Patty Murray of Washington, have voiced more support in recent days. Murray said in a statement that she’d prefer bipartisanship, but “I also know we’ve got a long list of challenges that grow more urgent by the day. And I’m not interested in watching Sen. McConnell or Senate Republicans keep us from acting if we have the chance.”

The top Democrat in the Senate, Sen. Charles E. Schumer of New York, has not ruled out the idea, nor has Biden. In the first presidential debate Tuesday, Biden sidestepped the issue: “Whatever position I take on that, that’ll become the issue.”

While Biden, a longtime senator before he was vice president, is considered an institutionalist who favors Senate tradition and bipartisanship, he also doesn’t want his agenda to be dead on arrival in the Senate.

Democrats’ anti-filibuster momentum already may be building, given their outrage at Senate Republicans’ power play to confirm a successor to Justice Ruth Bader Ginsburg — Amy Coney Barrett — even as voting has begun for the next president. Senate Republicans in 2016 blocked President Obama’s nominee after Justice Antonin Scalia died nine months before the election.

“If the Senate Republicans confirm Judge Barrett, Democrats must move to end the filibuster and expand the Court in the next Congress,” Sen. Edward J. Markey (D-Mass.) said.

Why keep the filibuster?

Proponents, including Sen. Dianne Feinstein (D-Calif.), say eliminating it would only deepen the polarization in Washington. The 60-vote requirement is supposed to encourage the majority to reach consensus with the minority on bills, though that’s increasingly rare.

The filibuster “really does require some level of bipartisanship. It requires some negotiation,” Sen. Angus King (I-Maine) said in 2018. “The majority can’t just run over the minority, and in the long run, legislation is better if it’s formed that way.”

Richard Arenberg, a former Senate Democratic aide who co-wrote “Defending the Filibuster: Soul of the Senate” in 2012, warned that without the filibuster, legislation could be enacted and then undone again as control of Congress and the White House changed hands.

“The legislative filibuster may be the single most important thing preserving the Senate’s constitutional role as a check on majority tyranny,” Sen. John Thune of South Dakota, a Republican leader, said recently.

What might Democrats do?

They could completely eliminate the filibuster. But options that stop short of that are viewed as more likely.

Merkley has proposed requiring a more active filibuster. Senators would have to be in the chamber to lodge their opposition or have to keep talking, alone or in tandem with allies. Either method would likely reduce the number of filibusters.

Absent the filibuster, could Democrats pass Medicare for All and the Green New Deal?

That’s unlikely, at least in the short term. Democrats would still need 51 votes, and neither program is thought to have that much support even if the party has additional members in next year’s Senate.

How did the filibuster come to be?

The Constitution says the Senate makes its own rules. In 1805, shortly after then-Vice President Aaron Burr killed Alexander Hamilton, he persuaded the Senate to get rid of its rule for cutting off debate. But according to Sarah A. Binder, a senior fellow at the Brookings Institution, that opened the door to the filibuster in the mid-1800s — with opposing senators talking nonstop to prevent a vote on bills.

In 1917, the Senate acted to curb the practice. The result was a precursor of the filibuster rule as it exists today: The Senate could end debate by a vote of two-third of all senators. The threshold was later reduced to three-fifths, or 60 votes.

For a half-century after 1917, filibusters were few; the Senate cast votes to end them no more than seven times in each two-year Congress, according to congressional statistics. Over time, however, they gradually increased and then spiked as politics became more polarized in recent decades.

The Senate over the last two years has set a new record: 258 votes to end filibusters. Yet even that doesn’t convey the impact of the obstructionist tactic: If the majority leader knows 41 senators would support a filibuster, he typically has shelved a bill because of the difficulty of corralling 60 votes.

Hasn’t the filibuster been scaled back already?

Yes. Amid Republicans’ obstruction of Obama’s appointees, in 2013 Democrats got rid of the filibuster for executive branch nominees and all judges except Supreme Court justices. Just four years later, Republicans got rid of the filibuster for Supreme Court justices, to confirm President Trump’s first nominee, Neil M. Gorsuch, 54-45.

Obama said the filibuster is a relic of Jim Crow times. True?

In his eulogy of civil rights icon Rep. John Lewis in July, Obama urged the Senate to eliminate the filibuster — calling it “another Jim Crow relic” — so the Senate could pass a new voting rights bill. While Obama overstated the connection — the filibuster has been used against many policies and nominees — history does show a link.

Southern Democrats for decades used the filibuster — or just the threat of one — to oppose Civil Rights-era bills, including anti-lynching legislation going back to the 1920s. In the mid-50s, Vice President Richard M. Nixon — acting as the president of the Senate — led an unsuccessful effort to repeal the filibuster to allow passage of a voting rights bill, according to Adam Jentleson, a former aide to Senate Majority Leader Harry Reid (D-Nev.) and author of the forthcoming book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.” Perhaps the most famous filibuster was Sen. Strom Thurmond’s 24-hour, 18-minute talkathon against a Civil Rights bill in 1957.

SACRAMENTO — The day after the last out-of-town TV news bureau was shut down and state capital correspondent Ginger Rutland and her producer-husband Don Fields were fired, the couple got a panic call from their former employer, KRON-TV in San Francisco.

It was the first week of November and real news–not that stuffy, dull legislative dross that blows through the halls of the state Capitol–was happening in Sacramento.

“They wanted us to go out and cover the body search at the landlady’s house. You know the one who was accused of doing in all the old men?” said Fields. “Everyone wanted that story. Nobody wants to know about budgets or bills that might raise their taxes or ruin their water.”

Indeed, TV stations throughout the state–including KABC-TV Channel 7, KNBC Channel 4 and KCBS-TV Channel 2 in Los Angeles–dispatched correspondents to Sacramento that Friday afternoon in November to cover the Dorothy Puente “Arsenic and Old Lace” case, because not a single out-of-town TV station in California now has its own bureau here.

“It’s an absolute outrage,” said Harry Snider, West Coast director of Consumer’s Union. “We have a state that is supposed to have the 10th largest economy in the world and not a single TV station covering how it’s governed.”

With the shutdown of the KRON bureau, only TV reporters from Sacramento’s own stations cover legislative news on a regular basis.

“California is only one of three states in the country that don’t provide live coverage of debates in their state legislatures. Wyoming and Montana are the others,” said Tracy Westen, a USC professor who is writing a book on media coverage of state and local government in California (see accompanying article).

“Democracy is eroding in California,” Snider said. “Government does not work for the people, and the reason government doesn’t work is that public officials are able to escape the spotlight of public attention.

“All of them, from the governor on down, know that they can ride out a print story or a radio sound bite on the Michael Jackson show. But none of them want to be caught giving away the farm on the six o’clock news in Los Angeles or San Francisco.”

While TV stations have been pulling out, the state’s newspapers have been increasing capital coverage, according to a spokesman for Assembly Speaker Willie Brown (D-San Francisco). Currently, 30 newspapers and wire services have bureaus here.

Both Gov. George Deukmejian’s office and state Senate President Pro Tem David Roberti’s office are disturbed by television’s departure from the scene.

“The shutdown of the KRON bureau really is the culmination of a very disturbing trend,” said Kevin Brett, Deukmejian’s press secretary.

“What will be missed will be the original reporting and investigative reporting,” said Bob Forsyte, Roberti’s press secretary. “That kind of reporting can only be done with sustained coverage from a bureau. The viewers will miss what will only come to them now through the print media.”

KNBC News Director Tom Capra said the decision to shut down its bureau six years ago was based on financial considerations–determining how limited resources should be allocated.

“The real crux of this is the expense,” he said. “It costs about $100,000 a year to have someone in Sacramento. I would rather spend that money covering the news in Southern California. I’d a helluva lot rather have a bureau in Orange County or even Riverside than in Sacramento.”

Capital veterans such as Rutland and Fields, who have been in Sacramento for 10 years, and KCRA-TV’s Steven Swatt, who has been reporting state government news for nearly 20 years, say the benign neglect of Sacramento can’t be blamed on rising costs.

“Logistically and economically, its’s easier and cheaper than ever before,” Rutland said. “We’ve got videotape. We’ve got satellites. The fact is stations don’t do it because they’d rather put crap on the air.”

“It’s greed,” Swatt said. “You’ll see them send up people for things like the body search or a plane crash, but why aren’t they here when the Legislature’s trying to raise taxes or the CHP wants to upgrade its radar or there are hearings being held on changing school textbooks or day care?”

When he headed the Sacramento bureau for KNBC a decade ago, Steve Mallory says, it used to cost about $250,000 a year for an out-of-town station to maintain a capital bureau.

“Most stations like to have their own person on the scene, but if they can’t, they’ll take anything they can get,” said Mallory.

That’s what Mallory is banking on, at any rate. Last summer he created the Northern California News Satellite service to fill the void left by the TV exodus from the state capital. So far he has 13 subscribers, including KNBC, and several other stations and networks that buy his daily satellite video feeds on a spot basis. Both KCBS and KABC have bought stories from him, he said.

“If they get it for one-tenth the price from us, they’ll take it,” said Mallory, who, like a newspaper wire service, spreads his costs over a number of clients. “Public service isn’t the prime concern of television news anymore. The bottom line is.”

That doesn’t mean he offers second-rate goods, Mallory maintains.

“We’re their bureau in the state capital,” he said. “Our stories are written for a general statewide audience unless we get a specific request from a subscriber to do something. But we give them what they want.”

A recent typical NCNS news day involved covering a press conference on a new drunk driving bill, comment from Gov. Deukmejian on the Armenian earthquake, dedication of the state Vietnam Memorial and a plan authored by the state Department of Social Services to pressure absentee parents to make their child support payments.

“When the story broke about the woman who planted the people in her back yard, we dropped everything else,” Mallory said “It was the only story we did for three or four days. It was the only one our clients wanted.”

Fields is not surprised.

“Why try to inform the public about issues that are going to affect their lives when life can be made so much easier dealing with a car accident or an unexplained shooting or some bizarre thing on ‘Entertainment Tonight’?” he asked.

KNBC’s Capra maintains that his station gets all the state legislative news it needs–from wire reports, selected satellite feeds from Mallory’s NCNS, its Sacramento sister station and elected officials downstate for a visit to their constituents.

If a bill is controversial or of particular interest to Los Angeles audiences, Capra does what his rivals at KCBS and KABC do: He sends a reporter to Sacramento upstate for a few days to get the story.

“There’s not much in Sacramento that we don’t know about,” he said. “I don’t have a problem with the way Sacramento is covered and I don’t think we’re doing a disservice to the public by not following a bunch of rich lobbyists around. How many times can you cover that story?”

Snider’s answer is fast and angry: every day.

“It is amazing to me that legislators spend $100 million every two years to seek legislative office and TV stations don’t think they’re important enough to cover,” he said.

The voters are the ultimate losers, according to Swatt and Rutland.

“All the surveys say that 66% of the population gets its news from the TV,” said Swatt. “If they don’t even know what’s going on up here, that’s frightening.”

“We live in a democracy where public opinion is far more important than ever before,” said Rutland. “The Field Poll and other polls influence legislators. And the initiative process puts more and more power directly into the hands of the public. But the public doesn’t know what’s going on.”