Senators, Let the Math Point You to a Deal on the Filibuster

Scene from Firefly, Episode 5 (“Safe”)….

GRANGE: Twenty a head.

MAL: That’s an amusing figure in the light of you already agreed on thirty with Badger.

GRANGE: That’s afore we seen ’em. They’re atrophied, standin’ ’round on a ship for near a month.

MAL: My comprehension is, less muscle, more tender the meat. Thirty.

BOOK (quietly): Problem?

MAL (quietly): Nope. Minute from now we’ll agree on twenty-five.

It appears Malcolm Reynolds has more sense than anyone in the United States Senate at the moment – which is quite an achievement given that he’s a fictional character.

For the last week, the organization of the United States Senate and the regular order that is desperately needed has been held up over the fate of the filibuster – a Senate rule that requires 60 “aye” votes to agree on the terms of debate for legislation (as well as to close debate).

Until last night, Senate Minority Leader Mitch McConnell demanded a promise that there wouldn’t even be a vote to drop the filibuster from the Senate rules. Thus, a vote on ending the filibuster is still possible (indeed, likely, given the animus already building in DC) and sure to set tempers flaring once again.

Truth be told, there are opportunities and risks for the Democrats if they succeed in ending the filibuster. Every political coalition that gets control of the Senate has to balance the gains of present power with the risks of losing future power. The latter should be increasingly concerning to Majority Leader Schumer.

With all the talk of the Senate giving the Republicans a geographic advantage due to their increasing dominance over rural America, Democrats might wish to ponder how tenuous – and temporary – their control of the upper house really is.

Amidst those concerns, I have a different question: why is the filibuster treated as a binary choice in the first place? It’s not as if the 60-vote minimum was written in stone anywhere. The figure itself was a result of the Senate changing its rules in 1975, as NYU’s Rick Pildes noted. Prior to then, the cloture minimum had been 67 votes.

While Senators may see the filibuster as a matter of yes or no, the numbers show it’s a matter between 50 votes and 60 votes. Finding a halfway point between yes and no is a lot harder than noticing 55 is halfway between 50 and 60.

In our increasingly polarized and partisan era, a three-fifths majority for legislation seems overly constricting, while a bare majority threatens to accelerate said polarization. However, there is a third option, one that forces a significant Senate majority for legislation to move forward without setting the bar impossibly high. If the Senators can’t build enough comity to find a compromise, they can always let the numbers do it for them.