Mitch McConnell sees the handwriting on the wall regarding the filibuster and so he is using the filibuster leverage he has now to prevent its repeal. McConnell is refusing to agree to the organizing resolution, which determines committee ratios, committee membership, and other agreements between the parties on the operation of the new Senate, unless Democrats commit to not repealing the filibuster. By refusing to agree to the organizing resolution, basically threatening to filibuster it, McConnell wants to force the Democrats to either renounce any repeal of the filibuster today or repeal it almost immediately in order to actually allow the Senate to operate.
It appears that the Democrats’ strategy was to bring up some popular early bills that could not be done through reconciliation. First, there is the $1.9 trillion COVID relief bill, parts of which may not pass muster for reconciliation and just 50 votes plus VP Harris. More strikingly, Biden’s initial legislative priority is immigration, while Schumer’s priority is passing the House’s democracy reform package. Both of those would currently need 60 votes to pass. The more likely scenario is that Republicans filibuster those bills and then Democrats eliminate the filibuster, either in toto or for certain types of legislation like immigration and/of electoral reform. Democrats can then frame the issue of repealing the filibuster as simply overcoming the usual and constant Republican obstruction. As Brian Beutler writes, “Schumer’s first bill is democracy/anti-corruption reform; Biden’s is immigration. Both subject to filibuster. That scans more like they’re setting up a confrontation over the filibuster than preparing to whine about obstruction and move on”.
In order to thwart this plan, McConnell has decided that the time to force the Democrats to repeal the filibuster is now, before the Republicans can be accused of obstruction. McConnell said as much in a letter to his caucus, writing, “I believe the time is ripe to address this issue [the filibuster] head on before the passions of one particular issue or another arise”. That’s why McConnell is refusing to agree to Schumer’s organizing resolution without an agreement on maintaining the filibuster.
Forcing the Democrats to repeal the filibuster now would allow Republicans to portray it as a simple power grab. McConnell is already framing the issue that way, tweeting, “Minority rights on legislation are key to the Senate. President Biden spent decades defending them. More than two dozen Senate Democrats backed them just four years ago. This isn’t complicated. Simply reaffirming that Democrats won’t break the rules should not be a heavy lift”. Of course, the brazen hypocrisy in that statement is par for the course for McConnell, who simply broke the rule for filibustering Supreme Court justices when he had the chance to pack the Court in 2017. In addition, McConnell believes he probably has a better chance of getting the Democratic votes of Manchin and Sinema to maintain the filibuster now, rather then when Republicans have already filibustered two or three major Democratic legislative efforts.
If Democrats cave to McConnell’s demand on the filibuster, then they know they will have destroyed Biden’s agenda before his presidency even began and they will have already set up Democrats for losses in 2022 and 2024. As John Tester bluntly puts it, “Chuck Schumer is the majority leader and he should be treated like majority leader. We can get shit done around here and we ought to be focused on getting stuff done. If we don’t, the inmates are going to be running this ship”. Tester reflects the increasing consensus among Senate Democrats that the filibuster just has to go if Democrats are ever going to be able to govern.
The reality is that McConnell’s threat to filibuster something as basic as an organizing resolution is just a more concrete example of the Republican party’s refusal to accept the legitimacy of Democratic governance and the results of the 2020 election, simply a continuation of Trump’s mythical claims of election fraud. And his threat only highlights the necessity of filibuster reform. Josh Block writes, “I think we need to be a lot clearer in the language we use to discuss what McConnell is doing. He is threatening to filibuster the organizing resolution. It is a perfect illustration of why filibuster reform is necessary in the first place”. That’s not the only area where Democrats need to up their messaging game on the filibuster. As Adam Jentleson points out, the 60 vote rule did not come into being until 1917, meaning that majority rule in the Senate was the norm for most of the history of the country. Moreover, the filibuster was basically never used until the 1970s and, on the rare occasions when it was, it was used to kill Civil Rights legislation. As the difficulty in passing electoral reform or restoring the Voting Rights Act because of the 60 vote rule shows, it is still being used for that purpose today. More importantly, the Founders themselves specifically rejected a super-majority for the Senate, having seen what that requirement included in the Articles of Confederation had done to neuter the effectiveness of the Congress.
Finally, Democrats should not be afraid of what Republicans would do if they ever gain the majority without the filibuster in place. The GOP spent a decade promising to “repeal and replace” the ACA and couldn’t muster 50 votes to do it. Even Trump’s tax cuts, usually a no-brainer for Republicans, barely mustered the 50 votes required for passage under reconciliation. Moreover, the current situation where reconciliation only requires 50 votes while other legislation requires 60 simply favors Republican policies. The GOP is mainly interested in shoving money to the wealthy which can be done under reconciliation and, as the Trump presidency illustrates, has no real interest in actually governing which usually requires 60 votes.
Of course, Manchin, Sinema, and perhaps Feinstein may be a problem in repealing the filibuster. But they are only three votes and I’m sure the Biden administration could stuff the COVID relief bill with enough goodies to get them to change their mind, especially when Republicans try to filibuster that bill. The reality is that Manchin and Sinema will have far more power in a filibuster-free Senate than when virtually every Democratic bill is summarily blocked.
The filibuster is history. It’s just a matter of when. Even Mitch McConnell sees the handwriting on the wall. And he may now have inadvertently accelerated its demise.
Originally published at https://thesoundings.com on January 22, 2021.