In a speech last night announcing her about-face on the filibuster (from supporting it while in the minority to opposing it while in the majority), New Hampshire senator Maggie Hassan proclaimed that “we must pass legislation to protect American democracy.” She warned that “if the partisans who are attacking our democracy have their way . . . we’ll see an Election Day that is a charade, just like in countries where democracy doesn’t exist.” This is a common argument used to rationalize obliterating regular order in the Senate: Democracy itself is at stake, so the filibuster must be nuked to preserve it.
However, this is also an argument that grows weaker the more seriously you take its premises. Removing the filibuster dramatically expands the ability of a temporary partisan majority to meddle in elections. For example, a party controlling the presidency and the Congress could set national standards for elections in a way it thinks will be to its own partisan advantage.
A partisan majority could also revise the Electoral Count Act to make it easier to throw out a state’s electoral votes — by, say, allowing a vote of one branch of Congress to be enough to toss out those votes. Or it could revise the ECA to give the vice president the unilateral ability to throw out electors that he views as “disputed” or to choose between two competing slates of electors. (This authority, you’ll recall, was exactly what Trump’s legal advisors suggested already inhered within the office of the vice president, as they attempted to overturn the 2020 presidential election.)
Right now, the fact that bipartisan buy-in is usually required to change federal election law limits those kinds of partisan abuses. In changing the incentive structure of the Senate, detonating the nuclear option removes one line of defense against electoral meddling. The end of the filibuster and a post-nuclear Senate more broadly would mean a permanent reduction in the power of individual senators as senators. Thus, calling on a senator to nuke the filibuster to pass some change to the ECA is a much different ask from calling on her to change the ECA after an earlier Senate has already gotten rid of the filibuster. In the first case, she would be voting to reduce the power of her office; in the second case, that reduction has already taken place.
Washington talks a lot these days about the importance of defending democracy. Well, the institution of the Senate plays an important role in the infrastructure of American democracy — and prudent statecraft means looking at the long-term consequences of blowing up institutions.