It Really Is Time to Get Rid of the Filibuster

By Jeffrey Toobin, The New Yorker

10 August 20

oe Biden served in the Senate for more than thirty years, and he became an eager custodian of its traditions, including the filibuster. In theory, the filibuster allows a single senator to speak from the floor and extend debate until sixty senators vote to shut him or her down. Biden told me his views on the filibuster in 2005, when I wrote a story about Republican efforts to limit the practice so that the Senate could confirm George W. Bush’s nominees to the federal bench. Biden said that the Senate remained a place where “you can always slow things down and make sure that a minority gets a voice. The chance to filibuster is what makes the difference between this body and the other one”—that is, the House of Representatives. In our conversation, he recalled what he described as a more functional era in the government. “Let me tell you how we did it in the Reagan Administration,” Biden, who chaired the Senate Judiciary Committee for several of those years, said. “They came to me and told me whom they were going to nominate, and I’d say, ‘You’re going to have a problem with this one or that one’—maybe a dozen out of the hundreds of judges that Reagan appointed. And I’d say, ‘If you want to push that guy, all the others will wait in line behind him.’ And the problems generally were removed. We did business that way for years, and it worked. Now this crowd wants to shove everything down our throats. They don’t pull back on anybody. So we escalated with the filibusters. And they escalate with the nuclear option”—that is, the abolition of the filibuster.

In 2005, Democrats and Republicans in the Senate compromised. Bush got most (but not all) of his judicial nominees confirmed, and the Democrats held on to the filibuster as a legislative tool. But the use of the filibuster, which was once rare, became a routine part of Senate procedure. (Filibusters no longer necessarily involve extended speeches on the Senate floor. Rather, in current practice, if a senator announces his or her intention to filibuster, the Senate simply moves on to other business.) In recent years, filibusters have become so routine that it’s often been said, in a kind of understandable shorthand, that it takes sixty votes to pass legislation. Today, in fact, it mostly does.

The filibuster has been under bipartisan assault for some time. The practice survived the 2005 standoff, but in Barack Obama’s second term, Harry Reid, who was then the Democratic Senate Majority Leader, abolished its use against the nomination of most Administration officials and lower-court judges. In 2017, Mitch McConnell, as the Republican Senate Majority Leader, won the abolition of the filibuster in the review of Supreme Court nominees, paving the way for the confirmation of Neil Gorsuch. In other words, the filibuster now survives only as a vehicle to derail legislation—and precisely the kind of ambitious legislation that Biden hopes to pass if elected President. Democrats have a decent chance of winning a majority in the Senate in November, but it’s extremely unlikely that they will win sixty seats. So, under the current rules, the Republicans would be able to stymie the Democratic agenda with forty-plus votes.

The very existence of the Senate is an affront to democracy. California, with forty million people, and Wyoming, with five hundred and seventy-nine thousand, are both represented by two senators. But the filibuster is an even more egregious insult to the principle of majority rule. It gives veto power to forty-one senators who may well represent significantly less than forty per cent of the population. (Even though the Democratic caucus in the Senate includes only forty-seven members, they represent many more people than the Republican majority.) It is true that the Framers intended the Senate to be a slower-moving institution than the House—the cooling saucer, in George Washington’s perhaps apocryphal phrase—but there is no evidence that the Framers wanted paralysis. Several Democratic senators, such as Jeff Merkley, of Oregon, have been agitating against the filibuster for some time; and some moderates, such as Joe Manchin, of West Virginia, have expressed skepticism about the idea of abolishing it. The risk, of course, in doing away with the filibuster is that it may turn around and hurt the party that sponsored its demise if that party’s political fortunes change. In the first two years of Donald Trump’s Presidency, when Republicans also controlled the Senate and House, Senate Democrats found much to admire in the filibuster rules, and they employed them with regularity.

But it’s past time to recognize that the filibuster needs to go. Ultimately, filibusters are always going to hurt Democrats more than Republicans, because Democrats are the party of activist government. Democrats, as a rule, want more new laws than Republicans do, and the filibuster will always serve to thwart change. During this campaign, Biden himself has come to recognize that the filibuster has become a toxic force in government. (Barack Obama, also a former senator, recently joined the call to end the practice.) Abolishing the filibuster is certainly a risk for Democrats, but it’s one worth taking for the simplest of reasons: it’s the right thing to do.

How the Final Stretch of Biden's VP Search Is Playing Out

By Gabriel Debenedetti, New York Magazine

10 August 20

he women who might become Joe Biden’s running mate entered their final week in contention without much of an idea of what that week would look like.

Each member of the group — thought to include a pair of senators, two congresswomen, a governor, and a former senior Obama administration official — had, by last week, spent hours on calls with members of Biden’s vetting and VP-selection teams and with the presidential nominee himself. Most had allies — elected officials in D.C., political allies back home, even some influential donors — making their cases behind the scenes to assorted members of the Biden inner circle, from his retired senator friends to the aides he formally appointed to help him make the choice. They’d had their backgrounds dug through and rehashed by teams of campaign-hired lawyers, and they’d been asked to answer for family members, for decades-old speeches, and for votes that felt like ancient history. And they’d watched uneasily as “advisers to” and “friends of” themselves, their rivals, and Biden anonymously gamed out the supposed thinking in Wilmington for the country’s biggest newspapers and cable networks — usually with no way of telling whether the quotes were coming from anyone with any special knowledge at all.

Close staffers and allies of each of the contenders spent the end of July trying to parse rumor from reality as plugged-in Biden associates zeroed in on an apparent final five or six led by Kamala Harris, then Susan Rice and Karen Bass, but also including Elizabeth Warren and Val Demings and Gretchen Whitmer, after months of trying to make what they think is the most consequential vice-presidential selection in years given Biden’s age, the pandemic, the destruction of the Trump years, and the Democratic Party’s looming debates about its identity (even if, they acknowledge, the pick might not matter much in the election itself). And they tried figuring out whether stray chatter that other contenders still have a shot had any basis in fact, especially after a flood of late whispers about Whitmer, who wasn’t widely thought to be a finalist but who met with Biden in the last week.

Still, the candidates didn’t know what the end of the process would look like beyond final interviews with Biden — some in person in Delaware — or precisely when the final word would come. But now, at least, the wait is almost over: The Biden operation is revving up for a series of public and private events featuring his choice leading into the convention week, aimed at introducing her to the public and to Biden’s top supporters. Some donors have already received placeholder invitations to events with the pick, and she will also likely embark on a virtual campaign tour of her own in late August.

And now the contenders finally know what the final public part of the process entails: It’s a flurry of critical stories about their pasts.

Rice and Bass, in particular, have spent recent days watching a stream of stories about their past positions and associations burst into print, as reporters look further into the history of the relatively little-known contenders — but, also, as the Biden team gauges the public’s reactions, opponents aim to damage their chances, and Trump allies look for the most fruitful lines of attack considering their relative failure to damage Biden so far.

For Rice, Obama’s first ambassador to the United Nations and then his national-security adviser, this has meant facing a surge of speculation about how Republicans would renew their fury and conspiracy theories over the Benghazi attack and also a Politico report about her personal investments, including a significant interest in the company in charge of the Keystone XL pipeline project. And for Bass, the Californian head of the Congressional Black Caucus, it has meant trying to explain away her past work in Cuba and statements about Fidel Castro and also a 2010 speech she gave at the opening of the Scientology headquarters in Los Angeles.

The spike in attention to Rice and Bass was widely interpreted within Democratic circles as a sign of how seriously Biden was taking them compared to the others. The truth is that, this year, the selection process has at times been more difficult to decode than in any recent election because it has almost all happened remotely. (In 2016, reporters staked out Hillary Clinton’s home to monitor her interviews with VP candidates; that’s basically impossible now — news of Whitmer’s meeting with Biden only broke when the Associated Press tracked a chartered plane flying from Lansing to Delaware. Meanwhile, Biden, who often says more than he should, hasn’t exactly been gossiping about the process with visiting friends who might leak the intel; he has had almost no visitors.) And while the Biden team is, in fact, giving both women a close look, that doesn’t mean Demings or Warren or Whitmer or Harris — who has always been the front-runner — have slipped. Instead, much of this attention has come simply because of their relatively late emergences, whereas Warren and Harris each faced excavations of their past during the presidential campaign, and Demings, for example, saw a slew of stories about her time as Orlando’s police chief earlier in the summer, when her name started circulating seriously among Biden allies.

“A week ago, I would’ve said it’s Kamala versus the field, then I would’ve said Karen Bass has it won. Now, I think it’s Susan or Kamala,” said one senior Democrat close to Biden and some of his top aides. He then paused and admitted he didn’t actually know much at all. “Who’s in the hunt? We have no idea how one through five goes.” He paused again. “We have no clue.”

And as the actual selection process itself has remained locked more tightly behind closed doors than usual, the theoretically behind-the-scenes jockeying from wannabe VPs has grown more overt. Biden allies have pressed him to consider their favorites, then haven’t even tried denying reports about their leanings. (A sampling: some top former Obama aides have been pushing Rice; Chuck Schumer has spoken positively of Harris and Demings; a senior party pollster and a rising labor leader have boosted Warren; some of Bernie Sanders’s closest allies have advocated for Bass. A handful of Harris’s allies even secured a meeting with Biden’s team after a leak that Chris Dodd, one of Biden’s close friends and advisers, was unhappy with her explanation of her June 2019 debate exchange with Biden. Meanwhile, some Floridian leaders have warned against picking Bass; some donors have tried vetoing Warren; and some progressive leaders have highlighted concerns with Rice and Harris.)

They’ve also been taking their cases to the officials whom Biden formally tasked with helping him choose — Representative Lisa Blunt Rochester, former senator Dodd, Los Angeles mayor Eric Garcetti, and ex-Biden aide and lobbyist Cynthia Hogan — and they’ve also tried cozying up to members of Biden’s inner circle, like advisers Steve Ricchetti, Mike Donilon, Anita Dunn, Kate Bedingfield, Representative Cedric Richmond, Senator Chris Coons, Bob Bauer, Ron Klain, and Bruce Reed, to make their cases. As Biden’s self-imposed deadline to make his choice has slipped at least three times, the pressure campaigns have intensified.

Each of these efforts, however, is ultimately a bank shot: The contenders and their boosters all know the notoriously deliberative Biden is searching for someone who can replicate the relationship he had with Obama, and that it’s difficult for him to assess their interactions without a series of extended, in-person sit-downs.

That’s one reason the process has brought with it few surprises compared to previous ones — even those that ended with the obvious pick. Less than two weeks before Clinton put Tim Kaine on her ticket, for example, news broke that she was considering James Stavridis, a retired four-star Navy admiral who hadn’t been on any of the media longlists. Biden World floated no such final-stretch, out-of-the-blue contenders, despite considerable chatter among his former Senate colleagues and top donors for months predicting such a trial balloon (a CEO? A university president?).

Meanwhile, Clinton had actually looked at a few contenders far more closely than was widely appreciated at the time, or even today, after spending long sessions with Ohio senator Sherrod Brown, then–Agriculture secretary Tom Vilsack, and then–Colorado governor John Hickenlooper in person on the campaign trail and at her home. Then, in the final days before she tapped Kaine and debuted him at a rally in Miami, she got close enough to picking Cory Booker that her campaign even printed some Clinton-Booker signs.

Now, though, those kinds of signs would be of little use: Biden isn’t expecting to hold any public, in-person rallies between now and November — with his running mate or not — and he won’t even travel to Milwaukee for his convention. It’s not even obvious that he’ll appear in person with his selection at all: He’s only left Delaware a few times since the pandemic hit, and few people, aside from a very small group of top aides, grandchildren, and Secret Service officers, had even visited his home before he hosted final-stage interviews in recent days. In 2016, Kaine was in Newport, Rhode Island, raising money with his Senate colleague Jack Reed the night he was chosen. After Clinton called, he snuck away from the event in a Volvo before meeting up with her campaign chairman — who had himself left the campaign’s Brooklyn HQ in a freight elevator to duck attention — for the charter flight to Florida. Four years earlier, Mitt Romney’s campaign arranged for Paul Ryan — wearing a baseball hat and sunglasses — to exit his house through the backyard, then to hustle through a patch of woods to rendezvous with a top campaign aide’s son, who then drove him to the private air terminal undetected for his unveiling in Virginia.

That era of cloak-and-dagger is over, and so is the age of joint rallies. We’ll soon see if it’s been replaced by more than a two-window Zoom stream.