Why The Filibuster Is Here To Stay

The dirty secret: Democrats still need it.

Flip-flopping usually leads to ridicule; John Kerry’s famous “I actually did vote for the $87 billion before I voted against it” comment in 2004 still causes chuckles. But when it comes to the filibuster, no one bats an eye at the constantly shifting positions.

The U.S. Senate filibuster rule essentially requiring 60 votes to advance legislation will not go away any time soon. The current hand-wringing by the Democratic Party leadership demonstrates political theater at its best.

Senate Majority Leader Chuck Schumer plans to force a vote to change the rules to either carve out a single exception for the filibuster for voting rights or to do away with it altogether. Senators Joe Manchin from West Virginia and Krysten Sinema from Arizona are on record opposing such a move and are likely to hold firm, dooming the vote to fail.

So why do this? Is the pressure from the left for action, to be seen doing something, that great? Or does Schumer just want to take a vote so that he can say he tried everything and move on to more productive matters? Maybe he thinks the blockage will fire up the liberal base and help in the next election?

This is a tactically dangerous ploy; as Tyler Olson at Fox News points out, in addition to Senators Sinema and Manchin, already on the record opposing elimination, are the incumbents in tight races like Senators Cortez Masto, Kelly, and Hassan from Nevada, Arizona, and New Hampshire. They could lose moderates by going on record with a vote against the filibuster or savaged by progressives if they vote against it.

The judicial debacle

The current Senate Majority Leader’s entanglement with the filibuster goes back at least to this speech in 2004. In an impassioned, almost admirable address, he not only defended the filibuster as a concept, but gave specific examples of why he opposed those specific judges, yet would vote to confirm other judges he disagreed with.

“The Senate is a cooling saucer…the other side says let the majority rule…and so yes, we are blocking judges by filibuster. That’s part of the hallowed process around here of the founding fathers, saying the Senate is the cooling saucer…”

Alas, principles are much easier to stand by when one benefits from their continuation. Both parties ratcheted up judicial filibusters over the years, but judicial filibusters jumped from an average of 5 per year under Bush to 16 per year under Obama. In Schumer’s defense, he fought hard against the change, both within his party and attempting to break the impasse with Republicans, but at the end of the day, he voted with Harry Reid in 2013 to eliminate the filibuster for judges and cabinet nominees, with the exception Supreme Court nominees.

Predictably and recklessly, Schumer then supported the minority’s filibuster against the very next Supreme Court nomination:

“To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes, we ought to change the rules, I say if this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees and George Bush’s last two nominees — the answer isn’t to change the rules, Iit’s to change the nominee.”

Unfortunately for the Democrats, there was nothing particularly objectionable about Gorsuch except his conservative views. Still bitter about Republican Majority Leader Mitch McConnell blocking Merrick Garland’s nomination, perhaps the minority felt they had no choice. In the end, though, it was an exercise in futility. Trump would never appoint a moderate; anyone Trump put forward would have looked a lot like Gorsuch in judicial philosophy.

Almost casually, McConnell and the Republicans did away with the Supreme Court filibuster. What’s the point if every single judge Trump would reasonably nominate would be filibustered for being conservative? The days of approving judges with whom Democrats disagreed were apparently long gone.

Ironically, the Democrats wasted their single bullet. Imagine if they had not filibustered Gorsuch. A filibuster of Brett Kavanaugh would likely have been successful. It was hard enough for McConnell to muster fifty votes to confirm Kavanaugh after the epic Borking; he would have been unlikely to have mustered the votes to overturn the filibuster and a different, albeit still conservative, justice would have been nominated. They might have even gotten lucky with another Anthony Kennedy. Then, with an intact filibuster, the lame-duck nomination of Amy Coney Barrett might not have gone through.

The legislative front

A few months after confirming Gorsuch, President Trump began advocating for the elimination of the legislative filibuster. He felt it was an archaic rule and stood in the way of his healthcare and tax cut priorities. He got essentially zero support in this from Mitch McConnell.

In fact, a bipartisan group of 61 senators had recently sent a letter to Mitch McConnell and Chuck Schumer stating that “Regardless of our past disagreements on that issue, we are united in our determination to preserve the ability of Members to engage in extended debate when bills are on the Senate floor.”

Led by Republican Senator Susan Collins and Democratic Senator Chris Coons, 32 Democrats and 29 Republicans joined together to demand respect for the Senate’s traditions. And now? Roughly two dozen of the Democratic senators remain in office, and with the exception of Joe Manchin, they’ve gone wobbly. Did they always secretly hate the filibuster but then reluctantly support it solely to block the dangerous Trump agenda? Or have they all had sincere changes of heart?

There are certainly some that philosophically oppose a 60-vote threshold as undemocratic. Far more Democratic Senators likely want the filibuster maintained, they just don’t want to face a firestorm from the loud progressives for saying so. The adults know that Democrats will be in the minority again, possibly next year. It could even happen sooner with an ill-timed illness or family issue for a senator from a state with a Republican governor.

Abandoning the filibuster at this point might pass a few bills this year, but would ultimately be more impactful in empowering the opposition. Republicans stand to win at least the house this November, after which their ability to filibuster becomes trivial compared to Democrats’ other problems. A decent chance exists for the Republicans to take the Presidency, the House, and the Senate in 2024, after which the Republicans could pass any number of radical bills.

The carve-out chimera

The plan to make an exception to the Senate rules “just this once” to pass voting reform, or Build Back Better, or both, destroys the filibuster just as surely as a straight-out rule change. In reality, federalizing elections and passing a massive spending bill during a time of high inflation are just the sorts of things that should require a high level of consensus. Congress managed to pass a massive $1.9T Covid-19 relief package as well as a $1.2T infrastructure bill, so getting things done isn’t impossible.

A carve-out, of course, wouldn’t really stop with just these two wins. There will always be some important thing that absolutely MUST be done. Democrats believe that humanity teeters on the verge of extinction because of climate change. Wouldn’t that warrant an exception? What about the DREAMers? Recognizing them remains a moral imperative. Statehood for Puerto Rico! Statehood for DC!

In 2025, when Republicans may take office again, a host of conservative priorities will need exceptions. Nothing is more important than protecting human life, so funding for Planned Parenthood disappears on day one. Heck, if Roe vs Wade falls, why not make a filibuster exception just this once for a national ban on abortion? Sure, the Democrats could reverse it in four or eight years, but look at all the lives saved in the interim!

Schumer may yet have something up his sleeve, and Manchin and Sinema could fold. More likely is that a lot more Democratic Senators want to keep the filibuster than are willing to say so publicly. Perhaps the Majority Leader has concluded that the relief from “trying his best” and failing outweighs any damage to vulnerable senators from bringing the rule change to a vote.

Brian E. Wish works as a quality engineer in the aerospace industry. He has spent 30 years active and reserve in the US Air Force, where he holds the rank of Colonel. He has a bachelor’s from the US Air Force Academy, a master’s from Bowie State, and a Ph.D. in Public and Urban Administration from UT Arlington. The opinions expressed here are his own. Check out brianewish.com. Follow him on Facebook, Instagram, and Twitter.