the legislature as an institution is not really designed or intended to pass 'offensive' bills, it is supposed to reflect the consensus of the states which should hopefully reflect the will of the public at least to some degree. it should also be considered the same gridlock barring federal abortion rights also prevents a federal abortion ban so those who blame all political failures on the filibuster should really keep that in mind. if the people of tennessee, mississippi arkansas etc decide that legal abortion is a defining issue then their representatives would in kind be expected to reflect those values on the floor. while that precludes short-term solutions (once again, as intended) i do not believe that it is a political impossibility as is so often claimed. however, for the first time in a long while, democrats will be required to actually 'do politics'
We can’t do this without also fixing the filibuster. As it stands, almost nothing can be passed with legislation, even if you have a significant majority.
That's hyperbolic and is really letting the legislature off the hook for their poor performance. Many of the things that people are upset about, say abortion rights, could have easily been addressed over the past few decades via legislation, but the congress was happy to allow it to rest on a shaky legal foundation via judicial ruling. Even now, they do nothing on the issue. You could pass a federal law saying that an abortion is to be legal in the case of incest. Who is going to oppose that? Rather than do that people want to make it easier to amend the constitution. It's ridiculous and dangerous. If the legislature tries and is denied by the courts then maybe we can talk about a constitutional amendment. But they haven't even tried yet.
The threat of a filibuster is enough to make it not worthwhile to bring legislation to the floor. "debate" is pointless when everyone's mind is made up.
The legislature has the right and ability to do so at any time it so chooses, and has chosen not to. As our legislative branch is currently non-functional, it's reasonable to expect that legislative action will not be taken in any kind of time frame that matters.
The saying in Washington is that no one is safe when Congress is in session. And that's pretty much true. Aside from some constitutionally guaranteed activities like petitioning for redress of grievances, they can pretty much legislate anything they can agree upon. (Assuming they can ever agree on anything.)
For instance, the duly elected Democrats who control the House, Senate and White House like to point the finger at the Supreme Court, but they could easily pass whatever law they want about abortion. There would be no more arguing about original intent or penumbrae etc.
Congress could turn around tomorrow and overrule it with new legislation
They could, but they won't. We currently have a divided Congress, and neither house will pass something that the other would be willing to tolerate. Even if both houses and the President were of the same party, it almost certainly wouldn't survive a filibuster in the Senate.
It's a political issue -- and all issues are political issues -- so Congress won't act in a way that one party could see as a loss for them. Congress hasn't passed a nontrivial law in years and they won't start with this.
The legislature is ultimately not capable of anything. Passing legislation requires enormous barriers: the House and the Senate (usually by a wide margin) and the President and not having the Supreme Court just sweep it away.
In some cases, it takes only a single Congressman to prevent a law from being passed. If the minority party is dead set a bill -- if only for political reasons -- it often requires absolute unanimity on the other party to pass it, an unreasonably high bar to pass.
Legislation is nearly always trivial. They are only barely capable of passing even the most basic, crucial, mandatory law appropriating funds for the executive branch -- and that's only possible because the filibuster does not apply to appropriations bills. Real legislation is sometimes bundled into appropriations bills precisely to piggyback on that exception.
Theoretically, the legislature can do lots of stuff. Pragmatically, you can't simply say "well, the legislature should act". There is an enormous thumb on the scale in favor of the status quo.
This. When the electorate is sufficiently divided or otherwise in the process of debate that there is no consensus, it is proper that the legislative bodies representing the electorate also likewise have no consensus with which to pass new legislation.
Also, this feature also works the other way: If Congress were to pass, say, abortion guarantees or Chevron Deference into law, then good luck trying to get them repealed. See also Obamacare, which hasn't been repealed after it was passed despite hell being raised.
Congress can't meaningfully restrict its own actions by passing laws: any law passed can be repealed by a future Congress by the same procedure as long as there are majorities.
Which isn't to say that there's no point in purporting to do so: you may hope to require a politically costly public vote (avoidance of which was a significant feature of the Garland no-hearing: with nobody else "on the record," outrage focused solely on the politically-safe McConnell). How effective this is isn't really clear though: voters seem to usually want "their side" to take full, uncompromising advantage when they are on top, and increased polarization means that the fear of alienating independents/moderates isn't as much of an issue, because there aren't any of them left.
Rules and procedures such as the filibuster are weaker still, as they require only a majority of a single house, and no cooperation from the President. We've seen that borne out as the parties out of power became more likely to use the Senate's procedures to stall the party in power, and the fairly quick recent dismantling of those procedures in a bipartisan fashion.
Constitutional amendments can do all sorts of things and their high barriers to passage make them solidly entrenched, but it's very difficult to imagine any issue commanding the necessary supermajorities to pass an amendment on any subject in today's America.
As for Democrats or Republicans in power after the election curbing this kind of partisanship, I wouldn't bet on it. There may be some pushes to try to codify
This is why the "legislating from the bench" criticism always fell flat for me. America's legislative branch has been deadlocked for 40 years. History abhors a power vacuum. When one exists, the neighboring institutions will bend and stretch to fill it, distorting themselves and the whole power structure in the process.
Filibuster is almost never used. It's occasionally threatened, frequently used as an excuse for not even trying, but rarely used. If it were used more often, it would elevate the debate around the bills under consideration. Congress doesn't even try.
In principle, you are right, a filibuster seems to run counter to democratic principles.
However, given the realities of how Congress works, I personally have no trouble using the instruments available to stop the even more undemocratic influence of money in politics, which IMO is what this whole process is all about.
It's true that economic policy is structured such that Congress has effective control over the non-monetary levers.
The problem is that Congress is functionally ineffective at responding to popular demand, intentionally. The Senate is structurally allowed to act anti-democratically against the will of the populace: two representatives for fifty arbitrarily defined land areas are allowed to override proportionally elected representatives, and the filibuster allows only a third of them to block any action.
We are at a political impasse. Things will get worse because it does not look good to the minority party for the majority party to enact real economic wins.
If only the majority party were willing to wrestle a tiny speck of that anti-democratic power away from the Senate by overriding extreme rules like the filibuster...
The US Legislative System is built for gridlock. Lots of things come up again and again over the decades, but passage remains unlikely - especially for an issue where the opposition is more engaged (see gun control).
They could start by changing their rules so that one side can't refuse to legislate. Congress decides how Congress operates, and for some reason despite everyone being awful mad about it, Congress has never decided to make it harder for congress to be obstructed by Congress. They have from time to time made it easier (see filibuster-less filibustering), seems like they could undo that any time they'd like to get back to work.
The Constitution incorporates several brakes already, via separation of powers. Any bill requires the Senate and the House and the President. Even on the rare occasions where you have a majority of all three, that majority has to be in agreement -- often unanimous, if the majority is narrow, which it practically always is.
You don't always see that dissent. It's easier to let the opposition filibuster a bill than voice opposition from within your own party. If the filibuster didn't exist, you'd see more instances of single nay votes preventing passage.
So ending the filibuster would not come anywhere near creating a tyranny of the majority. It would just shift the balance a bit. It just so happens that that is also political, since there are ideological patterns of people who want to use the legislature to create change versus those who prefer to maintain the status quo.
It only takes a legislator or two because of the policies and procedures the other legislators agree to. They are free at any time to change their rules of procedure. A filibuster without requiring actual filibustering is a process congress agrees to have, not something prescribed for them from on high. Almost their entire process is something they have all agreed to, if congress is easily deadlocked by one or two legislators, it is because congress does not want that to change.
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