The question of the filibuster is momentarily on the back burner as Congress considers a covid relief bill, which will be passed through reconciliation — a limited, once-yearly tool the majority can use to move certain kinds of legislation. But that question will hang over everything that happens in Congress during Joe Biden’s presidency.
And right now, the very senators who cling most ardently to the filibuster are demonstrating what legislating could be like without it. The post-filibuster future they’re fighting against is, in fact, their own ideal: a situation in which they have tremendous influence, which they use to move legislation in a moderate direction and make bipartisanship possible.
Right now, House Democrats are pushing one version of the covid relief bill, which, among other things includes an increase in the minimum wage to $15 an hour. In the Senate, however, that increase is opposed by two moderates, Joe Manchin III (D-W.V.) and Kyrsten Sinema (D-Ariz.).
Both of those moderates have promised never to support ending the legislative filibuster. Other moderates, including Jon Tester (D-Mont.) and Angus King (I-Maine), have concerns about whether other funds in the bill are properly targeted. So right now they’re all deep in negotiation, and in the end, the moderates will almost certainly get most of what they want, because the legislation can’t pass without them. If they are really eager for bipartisanship, they could even partner with Republican moderates to make a set of joint demands.
All that is exactly what Democratic moderates want. And it’s only possible because reconciliation bills can’t be filibustered, and can pass by simple majority.
Do you know what would happen if Democrats had already used reconciliation on something else, and this covid relief bill was subject to the filibuster? The answer is absolutely nothing. There would be no debate. There would be no negotiation. There would be no vote. Republicans would simply pronounce their intention to filibuster the bill (which these days is done via email) and that would be the end of it.
Filibuster supporters cling to a fantasy version of the filibuster in which it creates extended, detailed debate out of which arises glorious compromise legislation as Democrats and Republicans come together to find common ground.
But that’s not what happens in the real world. The filibuster doesn’t produce compromise legislation, and indeed, it doesn’t produce any legislation at all (to understand why, read this book or this article). Which is why the only honest argument in its favor is the one Senate Minority Leader Mitch McConnell (R-Ky.) uses, which comes down to, “Be careful what you wish for.” If Democrats eliminate it and then pass the agenda they were elected on, then the next time Republicans are in charge they’ll do the same thing.
Which is true. But to believe that this means we should keep the filibuster, you have to believe that gridlock is the best we can hope for, that preventing your opponents from some day passing legislation is so important that to achieve it you’ll discard your entire agenda and content yourself with an endless stasis.
Manchin and Sinema haven’t been in a coma for the past 20 years, so they know perfectly well that the filibuster doesn’t actually produce compromise. (Try to think of an important bipartisan bill in recent decades that passed because of the filibuster.) So what are they really up to?
To understand their strategy, you have to realize that both of them have defined their political identities in opposition to their own party. It’s especially true for Manchin, who represents one of the most conservative states in the country, but it’s true for Sinema as well. They get attention and headlines when they’re making life difficult for Democrats. That helps them convince voters that they’re independent and tough-minded, and it’s okay to vote for them if you’re a Republican.
Which means they have to find opportunities for performative apostasy, which always gets you portrayed as principled, even heroic (as Sinema no doubt learned watching her fellow Arizonan, Sen. John McCain). And since maintaining the filibuster will doom almost the entire Democratic agenda, when they proclaim their support for it, liberals inevitably lash out at them. And for someone who wants to be known as a moderate maverick, an attack from the left is not something to be avoided; it’s a benefit to be sought.
But with a bit of a longer view, they could realize that a post-filibuster Senate would be positively bursting with opportunities to wield influence and show how moderate and independent they are — while actually delivering for their constituents and the country. It’s only when legislation can actually pass that the senators sitting at the chamber’s fulcrum have the power to shape it, as they’re doing now on the reconciliation bill.
Once the covid relief bill is passed, the filibuster will mean that they, and whatever they want to accomplish, will immediately become irrelevant. Is that really what they want?