McConnell opens door for Democrats to unrig the system: End the filibuster

Golden is the author of "Unlock Congress" and a senior fellow at the Adlai Stevenson Center on Democracy, which seeks to improve democracy on a global scale. He is also a member of The Fulcrum's advisory board.

It may seem like recent Supreme Court decisions have the conclusive power to halt reform efforts to unrig congressional districts and suck the billions of dollars out of our politics. But this is really not the case. A path remains for Democratic leaders to restore fairness and common sense to American elections. But in order to do it, they'll need to rip a page out of Mitch McConnell's book and restore majority rule to the Senate.

The fact is that millions of Americans of different political stripes crave electoral reforms that would make the House more accurately reflect voter preferences and would slash the corruptive influence of big money on Capitol Hill.

A bipartisan poll conducted by GOP pollster Ashlee Lee Stephenson and Democratic pollster Celinda Lake revealed that 71 percent of Americans wanted the Supreme Court to set a clear standard at which point political gerrymandering violates the Constitution. And 73 percent said they wanted districts to be drawn in a nonpartisan fashion — even if the party they affiliate with would win fewer seats.

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Similarly, an overwhelming majority of Americans are sick of the slosh of campaign cash that, according to researchers Martin Gilens and Ben Page, makes the preferences of wealthiest contributors (the richest 10 percent of Americans) 15 times more likely to become policy than what the rest of us want.

People get this. In 2018, Pew Research reported that 77 percent of Americans agree "there should be limits on the amount of money individuals and groups can spend on campaigns."

So why am I training the spotlight on the Democrats? Because as much as everyday Americans from both parties say they want new laws to shatter the corruption, the fact is that the support from actual lawmakers falls heavily along partisan lines. There is no hiding from this reality.

In 2016, Democratic minority leaders in the House and Senate announced a practical set of reforms to put more power back into the hands of the people. The legislation would have mandated independent, nonpartisan districting commissions, provided federal matching funds to leverage small donations to candidates, and restored essential protections of the Voting Rights Act.

The GOP dismissed it out of hand.

But in 2018, a new Democratic House majority quickly passed these reforms in its first major bill, HR 1 — the For the People Act. The bill would also fight "dark money" by requiring disclosures of donors from big-money organizations, expand the curbs on contributions from foreign nationals and create a national strategy to protect our elections.

The bill passed, on a 234-193 vote. All 234 "yeas" were Democrats. Not a single vote crossed over in either direction.

It should come as no surprise that the Republican leader in the Senate, Mitch McConnell, has refused to put the bill on the floor. Even if he did, the Democrats would be hard-pressed to get four Republicans to cross lines to reach 51 votes.

But reaching a majority in the Senate isn't the bar anyway. The "cloture" rule requires getting 60 votes before any bill can be debated and voted upon. That, for Democrats in the minority, is a near impossibility.

That said, nothing is forever. The Democrats have a chance to win back the Senate and the White House in 16 months. If they do, under the current rules, it would still be a steep climb to reach that 60-vote threshold on HR 1. But here's the thing: They don't have to.

The filibuster and cloture rules are nowhere to be found in the U.S. Constitution. They were an accident of history.

In 2013, Democrat Harry Reid, then the Senate majority leader, went "nuclear" and dropped the 60-vote rule down to a simple majority for confirmations on lower federal court judges and all executive branch nominations.

It was a bold move, but not even in the same league as Mitch McConnell.

In 2016, McConnell refused for nine months to have hearings for President Obama's Supreme Court nominee, Merrick Garland. But as soon as McConnell had a Republican in the Oval Office, he exploded the filibuster and confirmed two lifetime appointments to the high court by majority rule. This achievement will appear in the first paragraph of McConnell's obituary.

Only one circumstance remains where the filibuster and cloture rules in the Senate can stymie the efforts of the majority: passing legislation.

Some Democrats will object to losing this blocking tool in the Senate — pointing out that due to demographic and regional splits, by 2040 an estimated 70 percent of our population will be in 15 states, represented by 30 senators.

It's a legitimate concern. But it should not stop Democrats when they get back up to bat. The 60-vote rule is merely a custom which arguably violates Article I of the Constitution. Just as these rules were overturned for nominations, they will eventually be eliminated for legislation. It is more a matter of when — and for what.

A few of the Democratic presidential candidates have already said they'd be open to jettisoning the filibuster — but most are wary.

So far, Sen. Elizabeth Warren has been most unequivocal, announcing on April 5:

"When Democrats next have power, we should be bold and clear: We're done with two sets of rules — one for the Republicans and one for the Democrats. ... If Mitch McConnell tries to do what he did to President Obama, and puts small-minded partisanship ahead of solving the massive problems facing this country, then we should get rid of the filibuster."

Reform activists should be pushing every one of these Democratic presidential candidates to make this same commitment. Now. Get them all on the record.

The true ideals that are driving a movement to repair a rigged American government are nonpartisan. But it just might take the will of a single political party to reform the rules — in order to restore the system.