The Filibuster is Going Away

The writing is on the wall for simple-majority voting in the Senate.

MR SMITH GOES TO WASHINGTON (1939) – JAMES STEWART. Credit: COLUMBIA PICTURES / Album

The Senate Majority Leader is issuing a dire warning that will not be heeded, at least partly because of his own abuses of power.

NBC/Yahoo News (“McConnell warns Democrats about changing Senate rules to kill the filibuster“):

Senate Majority Leader Mitch McConnell has a message for Democrats: Don’t end the legislative filibuster if you win control, or you’ll regret it.

“The important thing for our Democratic friends to remember is you may not be in total control in the future. And any time you start fiddling around with the rules of the Senate you always need to put yourself in the other fellow’s shoes and just imagine what might happen when the winds shift,” the Kentucky Republican told reporters on Tuesday.

McConnell called on “responsible Democratic senators” not to be “stampeded by the hard left” and preserve “the one institution that guaranteed that America stayed in the middle of the road.”

Were these remarks coming in a vacuum, or maybe fifteen years ago, that would have been a very compelling case. Indeed, it’s one I’ve often made myself: we should avoid making major policy shifts on razor-thin margins. The filibuster, rarely and judiciously used, requires consensus-building.

But, of course, it has become something else entirely. Harry Reid used it routinely to stop Bush Administration policies, essentially making 60 votes for all legislation the normal order. McConnell naturally upped the game when the tables turned. Eventually, Reid would do away with the filibuster for judicial nominees except for the Supreme Court and, predictably, McConnell did so for the Supreme Court. (I supported both of those, having the longstanding position that the filibuster should not be used for Presidential appointees.)

In that environment, the anti-filibuster argument is rather powerful.

McConnell’s remarks come as Democrats debate among themselves whether to preserve the super-majority requirement to pass legislation if they win control of the White House and Congress this fall and their agenda is obstructed. Numerous progressive activists, as well as former Senate Majority Leader Harry Reid, D-Nev., support its abolition.

Democrats who favor the change, including potential vice presidential contender Sen. Elizabeth Warren, D-Mass., say the 60-vote rule gives a minority of senators a permanent veto that makes progressive governance impossible, particularly given the structure of the Senate that gives small red states like Idaho and Wyoming the same representation as large blue states like California and New York.

“If Mitch McConnell is going to do to the next Democratic president what he did to President Obama, and that is try to block every single thing he does, then we are going to roll back the filibuster,” Warren said during a presidential primary debate in late February.

While I can preach this one either way, I think Warren has the better argument here. The Electoral College and Senate already give Republican-leaning states outsized representation, diluting the voting power of Democrats. It takes a perfect storm like 2008 to give Democrats any chance at all at a filibuster-proof majority.

Still, as shrewdly and shamelessly as McConnell has wielded power, he didn’t eliminate the filibuster over ordinary legislation in the early part of Donald Trump’s presidency, when Republicans held the White House, House of Representatives, and the Senate and could therefore have rammed through anything they wanted. He did in fact take a longer view.

But other Democrats like the power it affords them to shape and block legislation while in the minority, with some of them holding more centrist views, such as Sen. Kyrsten Sinema, D-Ariz., and Sen. Joe Manchin, D-W.V.

Still, Democrats are hungry for big changes and are unlikely to be patient if they take all the reins of power.

The debate was reignited recently after Sen. Chris Coons, D-Del., a moderate ally of Biden who has supported the filibuster, told Politico he’s open to abolishing it. “I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” he said.

A Biden campaign spokesman didn’t immediately return a request for comment on whether he would support or oppose a Democratic effort to abolish the 60-vote threshold for legislation.

Of course, this all depends on a true blue wave in November, which is possible but hardly assured. The question is moot unless the Democrats have 51 votes in the Senate. And, even then, there’s no assurance that the red-state Democrats who would be necessary for that eventuality will go along with ending a legislative practice that has mostly redounded to their benefit.

FILED UNDER: *FEATURED, Congress, Politics 101, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. rachel says:

    Good riddance.

    2
  2. Michael Reynolds says:

    What Democrats from red states? Doug Jones? It’ll be a surprise to all of us if he’s still around come November. So, it’s Joe Manchin.

    Pressure from the grass roots will be irresistible. The cause here is not Harry Reid or even just Mitch McConnell, it’s the fanatical rejection of any and all comity, collaboration or compromise by Republicans. They’ve become nothing but obstructionist, so yes, the filibuster will go because that’s the kind of work-around that happens when one party abandons all pretense of giving a shit about the country.

    24
  3. Teve says:

    @Michael Reynolds: yeah, when you’re in the middle of a financial calamity unseen in 70 years, and the leader of the Republicans can admit that their number one goal at that moment is wrecking the president, you have to take away whatever enables them to do that.

    15
  4. Kylopod says:

    @Michael Reynolds:

    What Democrats from red states? Doug Jones? It’ll be a surprise to all of us if he’s still around come November. So, it’s Joe Manchin.

    For Dems to capture the Senate this year, they’re going to need to pick up seats in red-leaning states. Defeating Gardner in CO and Collins in ME are probably must-wins but not enough to push Dems over the top; to do so, assuming Doug Jones loses, they’d need to flip at least one of the following states: NC, IA, and MT. And frankly I’m not even sure Sinema would play ball; since entering office she’s built up a record as the Senate’s second-most conservative Dem, right after Manchin. Who knows how Kelly will vote, if he win’s AZ’s other seat.

    2
  5. Michael Reynolds says:

    @Kylopod:
    The filibuster will not be an issue in Senatorial re-election campaigns six years from now. About a hundred other things might be, but not the filibuster.

    5
  6. Michael Reynolds says:

    BTW here’s a useful thing for a post-filibuster Senate to consider: statehood for the District and Puerto Rico. That would ease some of our our Goobercentricity*.

    *Totally is a word. Now.

    10
  7. James Joyner says:

    @Michael Reynolds:

    What Democrats from red states? Doug Jones? It’ll be a surprise to all of us if he’s still around come November. So, it’s Joe Manchin.

    The only way the Democrats take 51 Senate seats is to knock off some incumbents in red states. Say, Bullock taking Montana, Bollier taking Kansas, Greenfield knocking off Ernst in Iowa, etc.

    2
  8. Kathy says:

    Well, the Senate filibuster is not law, but a Senate rule, a norm.

    We know what respect Republicans hold for long-standing norms when they get in their way.

    9
  9. Liberal Capitalist says:

    @Michael Reynolds:

    That would ease some of our our Goobercentricity

    If this were the 70’s and you were to wordsmith that to describe the well-intentioned good-hearted country bumpkins that, due to educational challenges, may vote against their own best interests, I would agree that it is a perfectly cromulent word.

    But for these gun-toting boogaloo inspired mean-spirited racist anarchist fanatics, not so much.

    Who knew that the Republicans would become the pro-fascist minority in the USA.

    4
  10. Michael Reynolds says:

    @James Joyner:
    Total number of Senate elections that have ever hung on the filibuster: 0. That will remain the case.

    2
  11. James Joyner says:

    @Michael Reynolds: Oh, sure. But I can see red state Democratic Senators declining to vote to end the filibuster because they think it tends to serve the interests of their constituents.

  12. Michael Reynolds says:

    @James Joyner:
    The Democratic Party now has its own ideological enforcers, similar to the anti-abortionists or gun nuts on the right. This is not going to be Obama’s Democratic Party, we have POC and progressives who are done with the go-along, get-along bullshit. We will primary the weak sisters. Look for a much more determined party.

    5
  13. R. Dave says:

    @James Joyner: Oh, sure. But I can see red state Democratic Senators declining to vote to end the filibuster because they think it tends to serve the interests of their constituents.

    More importantly, I think, it allows them to avoid taking a stand one way or the other on issues that are popular among Dems generally but not among their own more conservative constituents. That “accountability shield” effect is my main objection to the filibuster.

    3
  14. Michael Cain says:

    Indeed, it’s one I’ve often made myself: we should avoid making major policy shifts on razor-thin margins.

    If the Democrats have a majority with, say, 53 seats in the Senate, chances are good that majority will include Manchin (WV), ten Senators from the Mountain West, and probably one each from Iowa and North Dakota. It seems to me likely that at least four of those will bolt on almost any major policy shifts Democratic leadership would propose. Examples off the top of my head: a public option for the ACA is within reach but single-payer is not; $10/hr federal minimum wage, maybe $12.50, but $15 won’t happen; gun licensure is a pipe dream; the more extreme parts of the Green New Deal won’t pass; I think when it actually comes to a vote, the western Senators will reject the notion of creating another tiny state in the NE urban corridor.

    I admit to a parochial regional perspective, and the possibility that the Democratic Party is much more unified nationally than I think they are. Full disclosure, I’m a long-time registered Dem in a Mountain West state.

    1
  15. Jay L Gischer says:

    You know, the thing that bothers me most is imagine that Biden wins, but the Senate stays 51-49 R.

    Imagine further that Ginsburg retires. What’s to stop the Senate R caucus from simply refusing to confirm, well, anyone for the seat that isn’t approved by the Federalist Society. They will be happy to live with fewer Justices, as long as the missing one is a liberal.

    The only check on this sort of thing is politics. But the politics breaks in their favor in their states. Meanwhile, this is not How This Was Supposed To Work.

    3
  16. An Interested Party says:

    Oh my, a dire warning from this disingenuous windbag, it’s a real pity that McGrath has no chance of beating him in November…I guess Merrick Garland was unavailable for comment…by the way, Sinema has already made it clear that she is opposed to getting rid of the filibuster…so that’s two potential no votes from the Democrats for that…

  17. SC_Birdflyte says:

    I can’t shed any tears for the filibuster. What is needed is something affirmative, let’s say, a new law specifying a timetable for either approval or rejection of every presidential nomination. I’d like to see a maximum of 30 working days for the start of hearings, 60 days for the conclusion of hearings and committee vote, 90 days for vote in the full Senate.

    1
  18. Scott says:

    You would think that McConnell would model good behavior by reinstating the filibuster for judicial nominees now. Yeah, right.

    1
  19. Just Another Ex-Republican says:

    Please rescue my comment from moderation. It does include a link to a graph germane to the topic. Thanks,

  20. Sleeping Dog says:

    The filibuster won’t disappear, but it will change. Options include lowering the cloture threshold to 55, require that the member conducting the filibuster actually hold the floor* and/or including a rule that lowers the threshold for cloture each time a cloture vote is called.

    *This is how the filibuster once worked, but the senate changed the rules so that the flow of work wouldn’t be disrupted. Well today the senate is a do-nothing body so why not let some blabbermouth go on for days. But the filibuster, once rare, is now abused and something needs to be done.

    1
  21. Jax says:

    If I had three wishes right now, I would do every bit of finagling I could to make sure Trump, McConnell, and Lindsey Graham all lost their elections in November. Maybe a blanket “I wish all the Republicans would lose in 2020”, so then I had two more wishes to focus on getting rid of COVID and do something about global warming. 😉

    2
  22. JohnMcC says:

    Is it correct that getting rid of the filibuster is the only thing stopping the District of Columbia from being granted statehood? Could that be right? Just now ran across a reference to something called “51 for 51” — meaning 51 Dem Senators equals 51 states.

    Quick! Let’s organize a statehood election in Puerto Rico!

  23. An Interested Party says:

    …make sure Trump, McConnell, and Lindsey Graham all lost their elections in November.

    Is it correct that getting rid of the filibuster is the only thing stopping the District of Columbia from being granted statehood?

    It would be a delight to see the look of horror on the faces of Trump, McConnell, and Graham (particularly the latter two) once they realize that the Dems will be taking the presidency and the Senate back, getting rid of the filibuster, and will be making D.C. the 51st state…

    1
  24. Jax says:

    @An Interested Party: Let’s not stop at D.C. Puerto Rico, and every other protectorate. It’s about damn time they had equal representation, if they pay US taxes. Fuck the Supreme Court, let’s pack the Senate! And THEN we’ll pack the Supreme Court, too, for good measure.

    1
  25. An Interested Party says:

    @Jax: Indeed…and if Democrats operated like Republicans, all you wrote would come to pass, and with the same gung-ho attitude in how you described it…

  26. Jax says:

    @An Interested Party: We already tried playing nice, and it got us McConnell and Trump. They obviously only pay lip service to the Golden Rule, so we should give it back to them in spades. Make Racists Afraid Again! 😉

  27. Kylopod says:

    @Jax:

    They obviously only pay lip service to the Golden Rule

    What are you talking about? They all follow the Golden Rule: He who has the Golden Combover makes the rules.

    2
  28. James Joyner says:

    @Jax:

    Let’s not stop at D.C. Puerto Rico, and every other protectorate. It’s about damn time they had equal representation, if they pay US taxes.

    The don’t pay US taxes unless they live in the United States. Puerto Ricans living in New York pay the same taxes as other New Yorkers. Puerto Ricans living in Puerto Rico don’t pay Federal income taxes unless they’re Federal employees. (They do pay Social Security taxes but then they’re eligible for Social Security on the same basis as other citizens.)

  29. James Joyner says:

    @JohnMcC:

    Is it correct that getting rid of the filibuster is the only thing stopping the District of Columbia from being granted statehood?

    That and the Constitution of the United States. Many think the language allowing the creation of a federal district prohibits it from being made a state. Others argue that it would be okay to create a new state and just leave a rump district with the federal buildings. But that would create the absurdity of those few blocks having three Electoral Votes, thanks to the 23rd Amendment.

    Quick! Let’s organize a statehood election in Puerto Rico!

    There have been multiple ones, all of which failed. (Puerto Rican statehood has long been a plank in the platforms of both major US parties, by the way, although the Trump party likely doesn’t know that.)

  30. Jax says:

    @James Joyner: Oh, come on, man, don’t go getting all common-sensey (It’s a word if I say it’s a word, damn it!) on my “If I had 3 wishes….” fantasy of McConnell and Graham losing and the conservative freakout if we really could pack the Senate. 😉