Change is on the way. President Biden has signaled that the days of the Senate filibuster’s stranglehold on majority rule are numbered. Senate Minority Leader Mitch McConnell (R-Ky.) is scared to death that he’s right.
Biden warming up to the idea of making the filibuster much harder to use is big news, given his reluctance to take this step in the past. He’s responding to reality. As the president told ABC News’s George Stephanopoulos on Tuesday: “It’s getting to the point where, you know, democracy is having a hard time functioning.”
Exactly. The No. 2 Democrat in the Senate, Richard J. Durbin of Illinois, made it clear where things are headed when he declared on Monday that the filibuster was “making a mockery of American democracy.” Sen. Chris Van Hollen (D-Md.) said in an interview that it is becoming ever more obvious that Republican abuse of the filibuster “is a direct threat to President Biden’s effort to pass his ambitious agenda.”
Biden is a well-known Senate institutionalist. He practically grew up in the Senate, having arrived shortly after his 30th birthday. He thus has more standing than just about anyone to persuade the filibuster’s staunchest Democratic supporters, Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, of two things. First, the time for major new restraints on the filibuster has come; second, and just as important, that the current abuse of the filibuster flies in the face of authentic Senate tradition.
Adam Jentleson is a former top Senate Democratic aide and the author of “Kill Switch,” an appropriately titled book on the chamber. He offered a brisk history of the filibuster in an interview. The 60-vote standard for passing most legislation is really the product of the past 20 years, Jentleson said, and has been truly routine only since 2007.
At the beginning of the republic, he noted, “there was no filibuster.” Then, “there was the talking filibuster, used rarely, mostly against civil rights. Then there was a slow rise [in its use] through the latter half of the 20th century, then it skyrocketed under Sen. McConnell,” Jentleson said to me in an interview. Little wonder, as the author noted, that the word filibuster comes from Dutch references to pirates.
Biden underscored the history in his ABC interview, noting that when he first arrived in the Senate, stalling action required its members “to stand up and command the floor, and you had to keep talking.”
And changing filibuster rules would be nothing new. McConnell himself instituted the most recent shift. Eager to guarantee a conservative majority on the Supreme Court, the narrow Republican majority voted to remove the filibuster for Supreme Court confirmations. Not one of President Donald Trump’s three nominees — not one — got close to 60 votes. When it came to court-packing, McConnell had no problem with majority rule.
Biden made his comments on the filibuster on Tuesday, the eve of the formal Senate introduction of the For the People Act that has already passed the House. The comprehensive political reform bill would block the scandalous attack on voting rights in some Republican states. It would also curb gerrymanders that distort representation, take major steps to limit the power of dark money by expanding disclosure and create strong incentives for politicians to rely on small as opposed to large contributions.
The illogic bred by the filibuster mentality is brought home by a now popular, but deeply flawed turn in political commentary that would instruct Democrats to jettison all the other reforms in the bill to pass at least a voting rights measure. But absolutely no one believes that Republicans will provide enough votes to overcome a filibuster on a voting rights bill. Thus, it would be legislative malpractice for Democrats to walk away from a broadly popular (and much needed) suite of improvements to our political system when doing so won’t get them to 60 votes anyway.
Moving away from the filibuster will take time. Change is likely to be gradual, not sudden. The Senate might have to start with narrower reforms (including Biden’s “talking filibuster”) before it becomes inescapable that legislating will require getting rid of the filibuster entirely for whole categories of bills.
Of course, the alternative is for Republicans to become a more moderate, less monolithic party and to work constructively with Biden on major legislation. The fact that you just chuckled dismissively at that sentence is why filibuster reform is inevitable.