Democrats, McConnell and the Filibuster

Will the Grim Reaper thwart reform?

Mar 21, 2021

The filibuster is in the air these days, especially in Washington D.C. ThisSenate’s arcane parliamentary procedure of the Senate supposedly exists to guarantee the minority’s voice is heard by allowing for extensive debate on pending legislation. Over the last few decades, it has mutated from a little-used procedural maneuver into a tool of obstruction. By rule, the Senate can vote to end debate on a pending bill and move to a vote on the bill itself by invoking cloture (as it is formally called). However, a cloture motion requires a 60-vote super-majority to pass, generally an insurmountable hurdle. The result is that a Senator can block a bill from coming to the floor by merely indicating to the Majority Leader his or her intention to filibuster. Unable to muster the 60-vote majority necessary to end debate, the bill withers and dies without seeing the artificial light of the Senate Chamber. This stealth filibuster means a Senator is not obligated to publicly declare his or her reason for blocking legislation. The romantic spectacle of a Senator speaking non-stop for hours to hold the floor is no longer a reality. The filibuster is a de facto veto point with which the minority frustrates the will of the majority.

Having passed President Biden’s $1.9 trillion American Repair Plan with another esoteric Senate procedure (“reconciliation”, a Senate rule allowing certain bills that impact the budget to avoid the filibuster), the Democrats are face-to-face with the prospect their ambitious legislative agenda will be blocked in the Senate by Republican filibusters. There are several ways the Democrats can circumvent GOP obstruction, all of which rest on changing Senate rules to allow a simple majority to end debate and move to a floor vote on a proposed bill. They may, for instance, eliminate the stealth filibuster by requiring the “filibusterer” to hold the floor and speak non-stop. They might stipulate that the side supporting the filibuster always have 41 Senators in the chamber. Or they could use the procedure known as the “nuclear option” to overturn and change the rules by a simple majority vote.

To change a Senate rule, the Democrats would need all 50 Senators in their caucus to be united (Vice-President Harris gives them the 51-50 majority). In the past, there has been reluctance by many Democratic Senators to eliminate the filibuster. Without it, some fear the Republicans would have nothing to restrain them when and if they regain the majority; others feel it promotes bipartisan approaches to law-making. No matter the reasoning, there is a strong case that now is the time for Democrats to push for bold reform. The House has passed HR1, the For the People Act, a sweeping electoral reform bill. With Republican Senators signaling their intent to block the Democrats’ agenda, HR1 and other initiatives are DOA. While some previously-reluctant Democrats- Amy Klobuchar, Chris Coons, and Diane Feinstein among them- have publicly expressed a willingness to reform Senate rules, the two staunchest holdouts- Kyrsten Sinema (AZ) and Joe Manchin (WV)- have continually stated their opposition to eliminating the filibuster. Manchin recently moderated his position, stating in an interview that he would be open to requiring a talking filibuster. Sinema may be the toughest mind to change since she is not only against removing the 60-vote barrier but advocates the revanchist position of restoring the cloture rules’ original 67-vote requirement.

President Biden has been among those expressing reluctance to filibuster reform. Biden served in the Senate for 36 years and has a fondness for the across-the-aisle collegiality of the past; the intransigence of current Republicans is causing him to reconsider.

"I don't think that you have to eliminate the filibuster – you have to do it what it used to be when I first got to the Senate back in the old days. You had to stand up and command the floor, you had to keep talking," Biden said in an interview with ABC News.
"That's what it's supposed to be," he added when asked if he backs a talking filibuster. "It's getting to the point where, you know, democracy is having a hard time functioning."

Biden’s statements came on the heels of a warning by Senate Minority Leader Mitch McConnell that changes to the filibuster would result in a “scorched earth” response from the Republicans to bring the workings of the Senate to a grinding halt. McConnell was reminding Democrats that eliminating the filibuster would work against them if and when the tables are turned. McConnell’s record both as Majority Leader and earlier as Minority Leader indicates he is serious about obstructing a progressive agenda.

The Grim Reaper

Four years ago, Dana Milbank of the Wahington Post called Mitch McConnell the man who “broke America”: “No man has done more in recent years to undermine the functioning of U.S. government”, he wrote. “His has been the epitome of unprincipled leadership, the triumph of tactics in service of short-term power.” McConnell has shown a patent disdain for majority rule, the foundation of democratic government. As Minority Leader and, following the GOP’s capture of the Senate in the 2014 midterm elections, Majority Leader, he pursued a policy of obstructing the Obama Administration. Republicans employed the filibuster a record number of times.* By the end of 2013, a frustrated Harry Reid, Senate Majority Leader, engineered a rules change to allow a simple majority to invoke cloture on all Presidential nominations except Supreme Court Justices.

McConnell’s reaction was as might be expected. “No majority leader wants written on his tombstone that he presided over the end of the Senate,” he stated. “Breaking the rules to change the rules is un-American. I just hope the majority leader thinks about his legacy, the future of his party, and, most importantly, the future of our country before he acts.” Of course, McConnell changed his tune when the Republicans regained the majority and he became Majority Leader for Obama’s last 2 years in office. Following the death of Justice Antonin Scalia in February 2016, McConnell declared that being an election year, the vacancy should be filled by the next President. When Donald Trump was elected and nominated Neil Gorsuch, McConnell engineered a change to Senate rules allowing 51 votes to end a filibuster of a nominee to the Supreme Court and move to a floor vote.

So much for “breaking the rules to change the rules”. Hypocrisy it seems has many children.

Back in the minority, it is apparent that McConnell is replaying his 2009-2014 game plan. The $1.9 trillion stimulus bill passed the Senate without any Republican votes. McConnell will avoid bipartisan approaches to legislation as much as possible to prevent the Democrats from making any claim of a victory. After the Democrats reclaimed the House majority in 2018, he successfully used his position to block over 400 bills passed in the House. "As long as I'm Majority Leader of the Senate, I get to set the agenda, that's why I call myself the Grim Reaper," he said.

The Politics

If the Democrats hope to achieve gains and reforms via legislation, it appears imperative they make changes to the filibuster if not eliminate it altogether. Given their goals- voting rights, a large-scale infrastructure bill, immigration reform, addressing climate change- this is a moment to be aggressive. Structural reform is necessary for the long-term health of the republic, of course, but political considerations are a factor also. Governing effectively would restore some of the lost faith in government and enhance Democratic odds of success in the 2022 midterms.

This is the outcome Mitch McConnell and the Republicans fear and fight against.

This raises the possibility that Biden’s statement was intended to pressure McConnell into being more cooperative: “Work with us to pass legislation with Republican support, Senator, and we won’t have to eliminate the filibuster.” If McConnell holds his ground, he risks the Democrats eliminating the filibuster entirely. If he works across the aisle, he may be confronted with a revolt from the hard-core Trumpists in his caucus. For his part, Biden and the Democrats could see an opportunity to make substantive changes to our politics slip away for the next ten years.

*From the addition of cloture to the Standing Rules of the Senate in 1917 through 2008, 1125 motions to end debate were made. In the first six years of the Obama Administration with the Republicans in the minority in the Senate (2009 through 2014), there were 769 such motions made.

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