A confrontation between Democrats and the newly minority Republicans will probably wait until after former President Trump’s second impeachment trial. But to preserve this “supermajority” relic — requiring 60 votes to proceed even to a debate — the GOP would have to reverse habits going back 25 years.
Historically, the filibuster was deployed by Southern Democrats to prevent civil rights legislation, including anti-lynching protections, from ever reaching the floor. More recently, with the parties’ positions on racial issues reversed, Republicans, when they’re in the minority, have used to it to block meaningful action on a plethora of legislation supported by a majority of voters, from guns to health care.
The only reason the Affordable Care Act passed in 2010 was that Democrats, briefly, had 60 Senate votes.
The filibuster has a dark history, and even those who support it on the theory it prevents over-hasty legislation must acknowledge it now amounts to an undemocratic requirement the Constitution’s framers never would have tolerated.
It’s a rule — not a law or constitutional requirement — and could be overturned in a heartbeat, as it was when Mitch McConnell eliminated it for approval of Supreme Court justices, paving the way for narrow confirmations of three Trump appointees.
And if the filibuster can’t be used for lifetime judicial appointments, how can it be justified against ordinary legislation, which can easily be reversed?
Yet if the filibuster goes, Maine will still have its own version — a dead weight on legislation even more stultifying because few even acknowledge it exists.
I refer to the “tradition” that biennial budgets must be approved by two-thirds votes as “emergency” legislation. Really, it’s just an accident — the product of a push toward much longer legislative sessions that last nearly to the beginning of the July fiscal year.
At one time, lawmakers met for only a month of two. That all changed in the 1960s, when state legislatures began getting major federal grants, and took on increased financial responsibilities toward creating comprehensive educational systems, including universities.
The constitutional “emergency” clause is triggered because, by waiting until June, budgets can’t be passed as ordinary legislation, taking effect 90 days after adjournment.
This makes for a terrible budget process, and worse policy decisions. The hearings the Appropriations Committee holds in January and February are virtually meaningless, because the real decisions are made, much later, by legislative leaders behind closed doors.
These are largely trimming-and-paring sessions, where available revenues — determined by a forecasting committee, and not any real assessment of the state’s needs — are measured against spending requests that differ little from the previous budget.
Significant new programs are rarely funded, and there’s no chance of anything like the federal coronavirus relief bills — they’ll never fit the budget caps laid down long before.
The supermajority requirement makes substantive policy changes impossible when one party believes taxes can never be increased, but can only be cut.
On the revenue side, the results can be shocking. In 2017, Democratic leaders agreed to repeal an income tax surcharge approved by voters because they feared a repeat of the crippling GOP-led shutdown of 1991.
This is no way to run a railroad, let alone a Legislature, and the damage doesn’t stop there.
Since the 1980s, Maine has reduced its income tax top rate from 10% to 7.15%, and its tax code is far less progressive. Starting in the 1990s, it added many expensive business tax breaks.
Resources available to state government, as a proportion of the economy, are much smaller than 40 years ago. The essentially flat budget proposed by Gov. Janet Mills can’t possibly meet increased public needs following the pandemic.
Just reopening state buildings, retrofitting classrooms for safe in-person learning, helping small businesses get back on their feet, and ensuring downtowns don’t become ghost towns will take far more spending than is possible under the current system.
Unfortunately, there’s little that can be done right now. The best hope is for Congress to pass President Biden’s plan to aid state and local governments.
Planning for 2023, however, lawmakers could adopt a new approach, simple but requiring a sea change in attitudes: Pare back formal legislative sessions to three months, and adopt an annual, not biennial, majority budget by April 1.
Additional special sessions might still be needed, but lawmakers would no longer spend two months doing little of consequence. And with shorter sessions, lawmakers wouldn’t have to make the sacrifices this nearly full-time job, with part-time pay, now requires.
If the filibuster falls, majority rule will be finally restored to Congress. Maine can do no less.
Douglas Rooks, a Maine editor, reporter, opinion writer and author for 36 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at: drooks@tds.net
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