What should Democrats do in response? There are two things they need, neither of which will be easy to come by: complete unity and a bit of creativity.
Let’s begin with where we are at the moment. Because the Senate is divided 50-50 (with Vice President Harris breaking ties), the parties need to make a power-sharing agreement that sets out things such as how many seats each party gets on committees. But McConnell has demanded that Majority Leader Charles E. Schumer (D-N.Y.) pledge as part of the agreement that Democrats won’t get rid of the legislative filibuster.
In practical terms — at least at the moment — it’s essentially a moot point, since every single Democrat would have to vote to approve such a rule change, and a number of moderates, especially Sen. Joe Manchin III (D-W.Va.), have said they won’t do it.
Manchin is in the grip of a bizarre fantasy in which the filibuster has given us an era of effective legislating based on moderation and compromise, rather than nothing more than gridlock. But whatever the source of his delusion, it doesn’t seem to be going anywhere, so the chances that Democrats will eliminate the filibuster in the next two years are infinitesimal.
But here’s the thing: You never know. Politics is unpredictable. Democrats could get so fed up with Republican obstruction that Manchin and the other holdouts change their minds. It may not be likely, but it’s possible. At the very least, the threat of getting rid of the filibuster is something you might want to hold on to, for leverage in some future confrontation.
Which is probably one of the reasons Democrats’ response to McConnell’s demand for a pinky-swear promise to keep the filibuster has been a resounding “no.” And interestingly enough, while McConnell was probably hoping to get Democrats to start squabbling with each other over whether to keep the filibuster, that hasn’t happened. There may be differences of opinion among them over the filibuster itself, but none wants to give in to McConnell’s demand. Rather than dividing them, he brought them together.
Which bodes well for the future, because Democratic unity will be absolutely essential to getting anything done in a 50-50 Senate, when Republican unity will likely be the norm on any significant bill.
And that’s going to be a key part of McConnell’s strategy: to try to sow dissension in the Democratic ranks, so that if even one or two moderates pull away from a bill, it will fail.
And that inevitably brings us back to the filibuster itself, the 60-vote requirement that will keep Biden from passing almost any of the long list of items he ran and won on. While the majority gets to pass a reconciliation bill with a simple majority, they only get one such bill every year, and there are restrictions on what can be included. Democrats will no doubt try to cram as much as possible into their yearly reconciliation, but it will leave much of their agenda ignored.
So allow me to propose an idea, one that would open up space for some actual legislating. What if the Senate passed a rule saying that while the legislative filibuster is intact, the majority will be allowed five bills every year, unrestricted in topic, which will be debated and then voted on and will only need a simple majority to pass?
Call them Special Majority Rule bills, or Sammers. You get five Sammers a year, or maybe seven, or four — just so it’s more than one (and if somebody can come up with a catchier name, please do).
Manchin could keep saying he wants the filibuster to remain. Republicans would still get to use the filibuster to crush legislation they don’t like. And Democrats would have at least some opportunity to actually do what voters elected them to do: identify problems facing the country, propose solutions to those problems, debate the solutions and then, if they have more votes than the other side, pass those solutions into law.
If they can get a majority in both houses to create a public option, or raise the minimum wage, or expand access to child care, and the president supports it, it becomes law. Imagine that!
That’s how things are supposed to work in a democracy: We have elections, one side wins, they implement their agenda, and the voters decide if they like it or not. The trouble is that under the current system, we have elections, one side wins, and then, because of the filibuster, they don’t get to do the things they ran on.
That’s McConnell’s plan for the next two years: to make sure nothing of consequence passes the Senate, voters decide that “Washington” can’t get anything done, Biden looks like a failure, and a disgusted electorate gives Republicans control of Congress.
It has worked before. But it doesn’t have to work again.