If the Senate created its rules, can’t it change them too?

February 27, 2021

By Jamelle Bouie

Opinion Columnist

I know I am more than a little obsessed with the Senate filibuster. But my preoccupation is not without reason. I think the filibuster — or to be precise, the de facto supermajority requirement for legislation in the Senate — is both bad on the merits and a symbol of the sclerotic dysfunction of our Congress.

In the face of multiple, overlapping crises — and at least one long-term existential crisis — our elected officials refuse to act, much less take steps that would give them freedom of movement in the legislature. Instead, they hide behind rules and procedure, as if they are powerless to change both.

All of this is apropos of the news that the Senate parliamentarian, Elizabeth MacDonough, has ruled a proposed federal minimum wage hike as non-germane to the Covid relief reconciliation bill. Her ruling is not binding, but Vice President Kamala Harris, who also serves as president of the Senate, will abide by it. This means that if the Senate wants to increase the minimum wage, it will have to do so through ordinary legislation, making it subject to the supermajority requirement.

That means it isn't going to happen, at least not anytime soon, but the point I want to make is that these are fake constraints. The Senate determines whether it will abide by the parliamentarian, and the Senate decides whether it wants to operate by supermajority. The Senate, and its Democratic members in particular, are handcuffing themselves and reneging on their promise to millions of American workers.

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That Democrats are doing it to maintain their fragile coalition — to keep Joe Manchin and Kyrsten Sinema from sinking the entire package — is only a testament to how these fake constraints render the entire process of lawmaking a farce. I would rather the Senate take a simple up or down vote, and for individual lawmakers to show where they stand, than listen to some of the most powerful people in the country explain why they are bound by rules they could change at any time, for any reason at all.

Related to this, I want to share this 2010 Connecticut Law Review article titled "The Unconstitutionality of the Filibuster," by the congressional scholar Josh Chafetz. The key point is this: A Constitution written in the name of "We the people" is necessarily one that cannot abide a supermajority requirement for the ordinary business of lawmaking. Here's Chafetz:

The mere fact that our Constitution has some anti-majoritarian elements should not serve as a bootstrap by which any anti-majoritarian device is made constitutionally legitimate. … Rather than use some deviations from majoritarianism to justify still others, we should take note of the essential popular sovereignty foundations of our Constitution and insist that, in such a polity, minority veto cannot be piled atop minority veto indefinitely. The Constitution — our higher law — specifies certain deviations from majoritarianism. But the exceptions should not be allowed to swallow the rule, nor should antimajoritarian devices in higher law be used to justify antimajoritarian devices in ordinary law.

We can have a supermajority requirement for legislation or we can have meaningful self-government. We can't have both.

For more on the filibuster, you should listen to the latest episode of The Argument, now hosted by Jane Coaston.

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What I Wrote

My Tuesday column was on voter suppression, which is another frequent topic, but in this case I wanted to focus on the For the People Act, which, if passed, would pre-empt most new voting restrictions from Republican state lawmakers:

Obama asked Democrats to kill the filibuster and pass a voting rights bill because it was the right thing to do. But there's a stronger argument: that if Democrats don't do this, they'll be at the mercy of a Trumpified Republican Party that has radicalized against democracy itself.

My Friday column was a little bit of a history lesson, dealing with the story of Black radicalism and Black unionism in Alabama, related to the drive to unionize an Amazon distribution facility in the city of Bessemer.

The size, scope and sophistication of the union drive in Bessemer should complicate commonly held ideas of Alabama and the Deep South as backward and relentlessly hostile to progress. It should be a reminder of the ways in which the fight for racial equality has historically been one for the dignity of labor as well. And it stands, as well, as an opportunity to explore a side of the state's history that gets worse than short shrift in our collective memory.

I did a live chat on Twitter that you can watch here. I was also on a panel on race, journalism and the Trump era with my newsroom colleague Astead Herndon. You can watch that here.

Now Reading

Tavi Gevinson on Britney Spears in New York magazine.

Steven Hahn on St. Louis and the history of white supremacy in Public Books.

Adam Serwer on the human costs of the culture war in The Atlantic.

Perry Bacon Jr. on the lessons he learned as a reporter while covering Donald Trump, for FiveThirtyEight.

Allyson Hobbs on the Lorraine Motel in The New Yorker.

Samuel Earle on Britain's Conservative Party in The New Republic.

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Feedback
If you're enjoying what you're reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week's newsletter or on the newsletter in general, please email me at jamelle-newsletter@nytimes.com.

Photo of the Week

One thing I enjoy, and haven't had a chance to do since the start of the pandemic, is taking a long drive through Virginia, avoiding the highways and sticking to roads that cut through small towns and villages. I took this photo a few years ago on one of those drives, with a camera I no longer own.

Now Listening

I grew up in the 1990s and early 2000s listening to early-morning R&B and classic rock radio, and as a result my brain is fully colonized by the sounds of the '70s and '80s. This playlist reflects that influence, as well as my own taste and appreciation for a good bop. This playlist, for what it's worth, also doubles as my standard karaoke song list. If you have Apple Music, you can listen to it here.

1. "I Can't Go for That (No Can Do)" by Daryl Hall & John Oates

2. "Need You Tonight" by INXS

3. "Hold the Line" by Toto

4. "Takin' It to the Streets" by The Doobie Brothers

5. "Out of Touch" by Daryl Hall & John Oates

6. "Turn It Up" by Simply Red

7. "I Keep Forgettin' (Every Time You're Near)" by Michael McDonald

8. "What You Won't Do for Love" by Bobby Caldwell

9. "Careless Whisper" by George Michael

10. "Come Undone" by Duran Duran

Now Eating: Spiced Olive Oil Cake With Orange Glaze

I think I have made this maybe three times in three weeks. It's delicious and everyone in the house really likes it. Like every cake made with olive oil, this really benefits from using a flavorful oil. California Olive Ranch sells a "robust" oil that you can find in most grocery stores, although my first recommendation is to go to a specialty store. Also, this cake is a perfect partner to a cup of chai with a little milk and honey. Recipe comes (slightly modified) from The New York Times Cooking section.

Ingredients

1¾ cups all-purpose flour
¾ cup granulated sugar
2 teaspoons ground ginger
1½ teaspoons baking powder
1¼ teaspoons baking soda
¾ teaspoon ground fennel, cardamom or coriander (or all three, go crazy)
½ teaspoon kosher salt
¼ teaspoon freshly ground black pepper
½ cup extra-virgin olive oil
⅔ cup whole milk
2 large eggs
2 tablespoons dark rum (or whatever spirit you have on hand)
freshly grated zest of 1 orange plus 4 tablespoons orange juice
½ cup confectioners' sugar

Directions

Heat the oven to 375 degrees. Coat a loaf pan with nonstick cooking spray.

In a large bowl, whisk together the dry cake ingredients, including ground spices. In another bowl, whisk the oil, milk, eggs, rum, orange zest and juice until smooth.

Pour the wet ingredients into the dry. To prevent clumps, stir together starting from the center of the bowl, gradually drawing in the dry ingredients. Mix just until smooth. The batter will be thick. Pour into the prepared loaf pan.

Bake in the center of the oven for 1 hour, rotating after 30 minutes. When done, the cake will be just firm and dry on top and a tester inserted into the center will come out clean.

Meanwhile, make the glaze: In a measuring cup with a pouring spout, whisk together the confectioners' sugar and 2 tablespoons orange juice until smooth. The texture should be runny; add more orange juice if needed.

Let the cake cool in the pan on a wire rack for 10 minutes, then turn out. While it is still warm, drizzle the glaze over the top, making messy, Jackson Pollock-style zigzags by moving the cup back and forth over the cake. Let cool completely to set.

IN THE TIMES