Is it time Democrats finally end the filibuster?
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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We're covering the filibuster. Plus, an important story about being "fully vaccinated."
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The filibuster (again). We've done a deep dive on the filibuster's history (subscribers only) and also covered news about it a few different times. If you want a longer refresher, you can check out one of those articles.
A brief history: The Senate is the upper chamber of Congress, historically known for being collegial and sometimes called "the world's greatest deliberative body." It functions on what's called unanimous consent. That means if a single senator objects to something, the entire Senate has to stop and address that senator’s concern; oftentimes with a vote. Imagine the Senate is voting to confirm a judge. 70 of the 100 U.S. senators seem ready to vote for the judge, but one senator shares an objection and wants to continue the debate over the judge before they move to a vote on confirmation.
If that happens, the entire Senate has to stop to have what’s called a “cloture” vote, which is a vote to end the debate and move to a final vote.
But here’s the rub: it takes 60 votes to invoke cloture. Since the Senate is made up of 100 senators, for a long time that meant 41 senators could block the confirmation of a judge or a piece of legislation by refusing to move to the final vote. They would just endlessly call for more debate so no vote could happen. This is called a “filibuster."
What's happening now: Democrats are talking about abolishing the filibuster. Ironically, one of the big things you can't filibuster in the Senate is a rules change to the filibuster. So with 50 Democrats on board, Democrats could change the filibuster rules.. In fact, they've been kicking the idea around for more than a year (we published a piece about this on January 27th, 2021).
It wouldn't be without precedent. That hypothetical I laid out about judges, for instance, is no longer a reality: In 2013, Democrats eliminated the 60-vote threshold on most judicial nominees. In 2017, Republicans did the same with Supreme Court nominees. Throughout history, the specifics of how the filibuster works have changed repeatedly. But the filibuster rule on major legislation has remained intact.
Now, Democrats say the threat to voting rights is a big enough deal that abolishing the filibuster for major legislation — or at least tweaking it temporarily to push through a voting rights bill — is a worthy cause. Last week, 48 out of 50 Senate Democrats voted to change the rules to push forward a voting rights bill. Senate Majority Leader Chuck Schumer said on Friday Democrats "made progress" on a voting rights bill and a filibuster rules change to pass it. But Sens. Joe Manchin and Kysten Sinema, two Democrats, still say they are opposed to changing the rules and pushing through a voting rights bill with zero Republican support.
Democrats are continuing to explore a few options: One, they would re-enact the talking filibuster, which requires senators to actually take the floor and speak, often for hours, in order to halt a bill. Or, two, they would alter the rules to somehow be exempt for voting rights-specific legislation, arguing that "preserving democracy" should supersede any Senate rule and be above obstruction.
Below, we’ll take a look at what the right and left are saying. Then my take.
What the right is saying.
- The right says Democrats will regret ending the filibuster, especially given looming Republican power in Congress.
- They argue that it's about nationalizing elections, an idea that undercuts the Constitution.
- They warn that 48 Democrats voting to abolish the filibuster is already a huge threat to the future of the Senate.
The Wall Street Journal editorial board said the recent vote is a sign of radical change in the Senate.
"Washington wisdom once held that while Sens. Joe Manchin and Kyrsten Sinema were the public faces of Democratic reluctance to breaking the Senate filibuster, others in the caucus quietly supported the duo. But on Wednesday night, 48 out of 50 Senate Democrats voted to use the 'nuclear option' in an attempt to overturn election laws in most states," the board said. "That means the partisan abolition of the Senate’s 60-vote requirement for most legislation is no longer an abstraction. It’s an institutional Democratic Party position—a trigger that Majority Leader Chuck Schumer has committed to pull as soon as he has 50 votes and a co-partisan as Vice President.
"They lost 48 to 52, but the paucity of Democratic dissenters is astonishing given recent Senate history," the board added. "Dianne Feinstein, the senior Senator from California, went along after defending the filibuster well into the new Congress... Chris Coons, the Delaware Senator who cultivates a bipartisan reputation, also voted to destroy the filibuster. In 2017 he led a coalition of 32 Democrats declaring they are 'united in their determination' to maintain it. Twenty-nine GOP Senators also signed Mr. Coons’s letter. That’s right: While only two Democrats still back the filibuster under Mr. Biden, more than half of the Republican caucus supported it as a guardrail on their own majority under Donald Trump."
Hugh Hewitt said if Sen. Schumer succeeds in altering the filibuster, he'd be among the best Democratic allies the Republican party has ever had.
“If the filibuster is somehow revised or amended, the GOP majorities that look certain to emerge in both chambers after November will combine with whoever the GOP nominates in 2024 to create a unified field of Republican power in January 2025," Hewitt wrote. "Expect the new Republican president to use the new rules to move quickly to enact long-overdue reforms. First on my list would be a comprehensive measure that obliges school districts receiving federal funds to end public employee unions in schools.
"Extreme environmentalists already worry that long-overdue updates to the Endangered Species Act, the Clean Water Act and the Clean Air Act are coming, in part because those reforms will reduce their long-running accumulations of so-called stakeholder power in decisions far removed from conservation. If the country is to get moving again, amending these laws will be a critical first step," he wrote. "Defense spending, entitlement reform and reductions in the federal workforce will all get a big lift in 2025 using simple majorities in both houses."
In The Washington Post, former Vice President Mike Pence said Jan. 6 was a "tragedy," but responding to it by abolishing the filibuster would be, too.
"In the year since that fateful day, states across the country have enacted measures to try to restore confidence in the integrity of our elections while ensuring access to voting for every American," Pence wrote. "Georgia, Arizona and Texas have led the way with common-sense reforms, such as requiring verifiable identification on absentee ballots and using cameras to record ballot processing. Despite this steady progress of state-based reforms, now come President Biden and Senate Democrats with plans to use the memory of Jan. 6 to attempt another federal power grab over our state elections and drive a wedge further into our divided nation.
"Their plan to end the filibuster to allow Democrats to pass a bill nationalizing our elections would offend the Founders’ intention that states conduct elections just as much as what some of our most ardent supporters would have had me do one year ago... The notion that Congress would break the filibuster rule to pass a law equaling a wholesale takeover of elections by the federal government is inconsistent with our nation’s history and an affront to our Constitution’s structure."
What the left is saying.
- The left argues that preserving democracy is worth suspending the filibuster for a voting rights bill.
- They argue that the filibuster is already doomed, and it's only a matter of who will gain the most from it.
- They call out hypocrisy from Republicans who warn of preserving tradition.
In The Atlantic, David Litt said the filibuster is already doomed.
"After all, during the Trump era, Republicans didn’t just pass massive upper-income tax cuts via budget reconciliation, which requires a simple majority vote. They also ended the filibuster for Supreme Court confirmations, installing the most conservative high-court majority in generations," he wrote. "That Court is now poised to accomplish a wish list of Republican legislative priorities—overturning Roe v. Wade, expanding gun rights, and hamstringing the government’s ability to issue regulations, among others—without having to find 60 votes for a single piece of legislation.
"If Republicans regain the Senate, Democrats can filibuster conservative legislation," he said. "But that won’t matter much if filibuster-proof judges issue conservative rulings that have essentially the same effect. The full impact of the Court’s rightward turn has yet to be felt, but it’s possible that, thanks to these judges, the Senate’s rules are less a wall than a valve, facilitating conservative policies while blocking progressive ones. A real campaign to defend the filibuster would include restoring the 60-vote threshold for confirmations, and to her credit Sinema has suggested that she would be in favor of doing just that. But so far, just as she has failed to persuade many Democrats to join her in preserving the current 60-vote threshold, she has failed to persuade many Republicans to join her in trying to strengthen it."
In The Los Angeles Times, Jackie Calmes said the legacy of the filibuster is getting uglier.
"That the [voting rights] legislation is controversial reflects just how radical the Republican Party has become," Calmes said. "Five times after the Voting Rights Act became law in 1965, Republicans voted with Democrats to reauthorize and strengthen it. Five Republican presidents, all except Donald Trump, signed the bills. Seventeen current Republican senators supported the most recent reauthorization, in 2006, when the Senate passed it unanimously. But Republican support has evaporated. In 2013, a conservative majority of the Supreme Court all but gutted enforcement of the Voting Rights Act.
"Since then, and especially since Trump’s Big Lie claim that he was defrauded of reelection, red states have rushed to pass laws restricting access to voting — more in 2021 than anytime in the past decade," Calmes said. "But there is no bipartisanship in today’s Senate, which, more broadly, is all the more reason to eliminate the filibuster for the sake of democracy. Manchin says the threat of a filibuster encourages the parties to compromise. Yet the voting rights bill was his compromise, and he could find just one Republican supporter. Because of the filibuster rule, he needed 10. The senator also gets the history wrong, telling reporters that the filibuster has been 'the tradition of the Senate' from its start. Wrong: Filibusters date to the mid-1800s, and for more than a century were mostly used to thwart anti-slavery, anti-lynching and civil rights bills. Some tradition."
Eugene Robinson said Sen. Mitch McConnell (R-KY) is up for "Hypocrite of the Year."
"If McConnell wants to blame someone for destroying whatever bipartisan, hands-across-the-aisle comity the Senate might once have had, he need only look in the mirror. In his years as majority leader, McConnell flagrantly broke Senate tradition — and his own word — to achieve the political outcomes he wanted," Robinson said. "Most notably, look at the fact that Attorney General Merrick Garland should not be running the Justice Department. He should be sitting on the Supreme Court — and would be, if McConnell actually believed his own pious pronouncements about how the Senate is supposed to work.
"On the specious grounds that the nomination had come too close to a presidential election — there were eight months left before voters went to the polls — McConnell refused even to grant Garland a hearing, let alone a vote," Robinson wrote. "Surely, then, McConnell’s too-close-to-an-election rule had to apply when Justice Ruth Bader Ginsburg died in September 2020, since less than two months remained before a presidential vote. But McConnell, in a fashion that can only be called shameless, pushed through Trump’s nomination of Amy Coney Barrett at lightning speed."
I'm not sure I've ever been more torn about an issue.
Every time Tangle covers the filibuster, I have to admit that I've waffled and don't know where I land, or announce that I've changed my position. Today is no exception. After reviewing the arguments, I'm left tied in knots.
The first and most critical thing here is that the Senate is already dysfunctional to the point of absurdity. Traditionalists who lament this change and still proclaim it the "greatest deliberative body of the world" should be identified as nothing short of delusional (or self-aggrandizing). Remember: What Republicans are currently using the filibuster to do is to prevent debate on legislation. Not the passage of it — but the actual debate. They are outright avoiding an argument and a vote, the very tasks we pay them to undertake.
McConnell and company are also as shameless as Robinson says they are above. Senate tradition does not involve refusing to vote on Supreme Court nominees for eight months or promising to make presidents of another party a failure or threatening to grind Congress to a complete halt when you don't get what you want, all of which McConnell has done very publicly. He is a pious traditionalist when it serves him and an unrelenting partisan hypocrite when it doesn't.
He's also not the only hypocrite here. Sen. Tom Cotton (R-AR) illustrated this in compelling fashion by delivering a riveting speech in defense of the filibuster to the Senate last week — only to reveal at the end that it was a word-for-word speech Sen. Chuck Schumer (D-NY) had delivered to the Senate a few years ago. Schumer, of course, is the Democrat now leading the charge to end the filibuster.
Democrats should know — but somehow don't yet — that the filibuster is not their problem. They only had a 50 vote threshold to pass their reconciliation legislation and they couldn't do it. They might have 50 votes to pass their voting rights legislation, but that is anything but clear (and it’s irrelevant until they end the filibuster rules, which they also don't have 50 votes to do). All the crowing in the world about Joe Manchin and Kyrsten Sinema doesn't change the fact that those could both be — perhaps in the near future — Republican held seats. Democrats are lucky to have them, however much they want to blame them for being bulwarks against their agenda now.
What I can't get my head around is how Democrats have convinced themselves that abolishing the filibuster would be good for them. I think there is a good case it’d be a cataclysmic disaster for progressive causes they claim to care about. The central argument is that if Democrats don't act, statewide Republican legislation to curtail voting rights will prevent Democrats from winning future elections by suppressing minority voters who make up much of their base and creating pathways to overturn legitimate election outcomes. But Democrats lost to Donald Trump in 2016 without any of the legislation they say is motivating them now. The problem for their future prospects of power runs a lot deeper than voter suppression.
Besides, even if they were to push through a nationalization of mail-in voting (which I support), same day registration (which I support), online voter registration (which I oppose), a weakened standard for voter ID laws (which I don’t think would make much of a difference) and 15 days of early voting (which I support), Republicans would simply undo it the next time they had a 50-vote "majority" and a vice president in the White House. And trust me: Democrats passing a voting rights bill is not going to keep Republicans from winning future elections. You can take that to the bank.
And what happens then? What happens if Trump wins in 2024 with a split Senate, the majority in the Supreme Court and no filibuster? Democrats will watch as their nightmares come true: billions go to a border wall, environmental protections get thrown out, abortion is made illegal nationally, the regulatory state is torn to pieces, the Affordable Care Act is torn down (or cut), Planned Parenthood defunded, social security and Medicare reformed or privatized, and for four years Republicans would confirm every open judicial seat at the federal level and in the Supreme Court that they want. And that's just the obvious stuff.
Again: The difficult part here is that I do side with Democrats on their argument specific to voting rights legislation. Republicans are attempting to overhaul how voting works at the state level in a way that would benefit their election prospects and are justifying it on trumped up charges of widespread fraud they haven’t proven. As I’ve said, the gravest threat is the legislation that hands more power to partisan actors to take over elections.
I also think the Senate is already dysfunctional and Republicans will at least consider abolishing the filibuster the next time they're in the majority, too. And I think it's shameful that conservatives have abandoned the long-supported Voting Rights Act, while I see a lot of upside to many of Democrats' voting rights proposals (an argument we can have another day).
And perhaps the filibuster really is already dead. Maybe it's just a matter of who will finish the job. But if I were a Democratic senator, I’d start exploring other ways to slow the spread of Republican legislation that don’t involve green-lighting a wave of major conservative priorities in as little as three years.
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Your questions, answered.
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A story that matters.
What constitutes "fully vaccinated"? That question is percolating through the Centers for Disease Control (CDC) and other businesses as the prevalence (and importance) of booster shots continues to rise. So far, the CDC is resisting changing its definition of fully vaccinated to include a booster shot, but some businesses and colleges aren't waiting for them and have already updated their own definitions. Complicating matters further: Pfizer CEO Albert Bourla suggested this week that an annual Covid-19 vaccine would be preferable over a frequent booster shot. Axios has the story.
- 161. The number of carve-outs created to the filibuster between 1969 and 2014.
- 67. The supermajority threshold for many Senate actions until 1975, when it was lowered to 60 votes.
- ~34%. The percentage of Americans who approve of the filibuster when it is described as a procedure used in the Senate to block a bill from being put to a vote until a supermajority of 60 senators agree to end debate.
- ~34%. The percentage of Americans who disapprove of the filibuster when it is described that way.
- ~33%. The percentage of Americans who say they have no opinion when it is described that way.
Have a nice day.
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