The good news is: Sen. Mitch McConnell (R-Ky.) has secured what he says is an ironclad promise from two Democrats not to eliminate the legislative filibuster. The bad news is: The filibuster hangs by a fragile, two-vote thread.
When Schumer was minority leader, he vigorously used the filibuster to do just that. Under his leadership, Democrats used the filibuster to block funding for construction of Trump’s border wall in 2019. They used it not once, but twice to impede passage of the Cares Act — forcing Republicans to agree to changes including a $600 weekly federal unemployment supplement. They used it in September and October to stop Republicans from passing further coronavirus relief before the November election. They used it to halt Sen. Tim Scott’s (R-S.C.) police reform legislation so Republicans could not claim credit for forging a bipartisan response to the concerns of racial justice protesters. They used it to block legislation to force “sanctuary cities” to cooperate with federal officials, and to stop a prohibition on taxpayer funding of abortion, bans on abortions once the unborn child is capable of feeling pain, and protections for the lives of babies born alive after botched abortions.
And those are just the bills Democrats killed with actual filibuster votes. More often than not, the majority doesn’t even bring up legislation that does not have 60 votes needed to cut off debate. Just the threat of a Democratic filibuster stopped Republicans from moving forward on a host of priorities, including entitlement reforms, immigration reforms, lawsuit reforms, health-care reforms, budget cuts, expanded gun rights and the defunding of Planned Parenthood. And Democrats have used the filibuster to force Republicans to reduce the scope of some of their biggest legislative achievements. Republicans could not make the Trump income tax cut permanent, because they had to use the arcane budget reconciliation process (which requires a simple majority vote, but limits what can be enacted) to avoid a Democratic filibuster.
Trump grew so frustrated by this that he repeatedly urged McConnell to eliminate the filibuster. But McConnell wisely insisted he would “not vandalize this core tradition for short-term gain.” He refused to scrap this rule when it was protecting Democrats, because he knew that in politics there are no permanent victories. Yet now many of the same Democrats who defended the filibuster when Republicans had unified control of government want to abolish it when Democrats do. Sen. Christopher A. Coons (D-Del.), one of the organizers of that 2017 bipartisan letter, now says that Democrats will “not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn.”
Democrats should take stock of everything they delayed and derailed under Trump because of the filibuster — and then imagine all that and more being enacted by simple majority vote when Republicans regain control of Congress and the presidency, which they eventually will. The filibuster allowed Democrats to constrain Republicans from enacting what the Democrats consider a radical agenda under a populist right-wing president. If they eliminate that tool to enact their own radical agenda, they would rue that decision when they return to the minority — and hasten that return by provoking a populist backlash that could sweep them out of power.
In his inaugural address, Biden declared that “politics need not be a raging fire destroying everything in its path. Every disagreement doesn’t have to be a cause for total war.” But if Democrats eliminate the one procedural safety valve that forces negotiation, moderation, compromise and consensus, they will pour gasoline on the fires Biden wants to tamp down, and turn every election into a matter of life or death for the other side.
Manchin and Sinema say they will not, under any circumstance, vote to abolish the filibuster. We’ll see whether they back McConnell against Schumer and Biden when Republicans launch their first filibuster of a major Biden initiative. But it is pathetic that no other Democrats will pledge to preserve a tool they so liberally used in recent years — and that one of our democracy’s most important institutional guardrails is just two votes away from elimination.