Joe Manchin has stated, “I do not support doing away with the filibuster under any condition”. Kyrsten Sinema’s office chimed in, saying she was “against eliminating the filibuster, and she is not open to changing her mind”. With those two unequivocal statements, it now appears that the filibuster will remain and Mitch McConnell can and will use it to obstruct most Democratic legislation and ensure a failed Biden presidency. But all may not be as it seems and Democrats still might be able to get some core elements of their agenda passed even if the filibuster remains.
First, Manchin’s and Sinema’s statements are perhaps not nearly as unequivocal as they might seem. Both have only stated that they would not vote to eliminate the filibuster. Of course, it would not be unheard of to see politicians totally reverse previously held positions, and it’s possible that constant Republican obstruction may eventually get Manchin and Sinema to reverse their course.
But both their statements also clearly leave open the possibility of reforming the filibuster. There are a number of paths to filibuster reform. One way would be to require 40 or 45 votes to keep the debate going as opposed to requiring 60 votes to end it. Such a change would also require that those 40 or 45 votes always be available in the Capitol or the debate would end and the vote could be taken. Not only would this end the days of Senators simply emailing in their intention to filibuster but also require those filibustering a bill to take to the floor of the Senate and actually explain and defend why they are blocking the vote.
Members of the Senate are considering other similar efforts to avoid the 60 vote threshold without eliminating the filibuster. The Hill reports a bipartisan group of Senators are looking at ways that bills with bipartisan support can somehow get to the floor for a vote that would both allow for amendments from both sides and a simple majority vote to pass. As Democratic Senator Cardin put it, “There are ways that we would like to modify floor procedure, but not necessarily getting rid of the filibuster. What we’re trying to do is get bipartisan bills to the floor, with guaranteed amendments and action”. GOP Senator Rounds added that there is “an interest in at least seeing the Senate actually function the way that it used to in the past”, meaning before use of the filibuster became a standard procedure. Both sides are apparently fed up with a handful of Senators are using Senate procedures to keep the body from actually legislating.
The other option is to allow the reconciliation process, which only requires a majority vote, to include other areas of legislation beyond the budgetary matters that are allowed now. That would require changing what is known as the Byrd rule, which restricts policy changes extraneous to the budget and requires reconciliation bills not to increase the deficit after ten years. Perhaps the most currently discussed option regarding reforming reconciliation and the Byrd rule is to allow the process to include democracy reform legislation. That would allow Senate Democrats to pass HR1 with just 50 votes plus VP Harris.
However, there are real costs with using reconciliation as a vehicle for legislation. First, bringing a bill up for reconciliation on the Senate floor allows for Senators to propose unlimited amendments. For instance, over 700 amendments were proposed to the 2017 budget resolution. While many of those amendments are frivolous messaging points for individual Senators, they have to be considered and finally voted on. That takes time, a lot of time, time which Democrats can not afford to waste. In addition, most of the recent budget reconciliation bills, such as Trump’s tax cuts, have been negotiated in secret and then dumped on legislators just hours before the vote in order to prevent any real opposition. What this usually means is that the bill is filled with lots of special interest goodies and provisions whose effects have often not been thoroughly thought out.
Changing the rules on the filibuster, reconciliation, and the Byrd rule only requires fifty votes, so Democrats can use that capability any time they want to. Similarly, only a majority vote is needed to overrule the Senate parliamentarian if there is a disagreement about eligibility of certain elements of the legislation being considered under reconciliation. Of course, changing the rules would mean getting Manchin and Sinema on board and it would seem more likely that they would opt for filibuster reform which is a much cleaner solution than messing with reconciliation and the Byrd rule.
But even if none of those reforms ever happen, there are still critical parts of the Democratic agenda that can be implemented using the existing reconciliation process. Already, Bernie Sanders, who now heads the Senate Budget Committee, is signaling that he wants to use reconciliation to pass the COVID relief bill if, (I mean when), there is not enough GOP support to get to 60 votes. As part of that package, Sanders believes he could include the 15$ minimum wage, arguing that actually providing a living wage would reduce the current safety net costs incurred by the government that support the working poor. Sanders can cite a recent study that showed a $12 minimum wage would reduce government spending on food stamps, public housing, and other safety net programs by over $17 billion. We’ll see what the Senate parliamentarian and the Congressional Budget Office have to say about that strategy.
Beyond COVID relief, reconciliation can also be used to raise taxes on the rich and roll back Trump’s corporate tax reductions. It can be used to expand access to the ACA, add a public option, and even lower the Medicare eligibility age. And it can be used for a green infrastructure program, climate legislation, and expanding broadband access to underserved communities.
Finally, as Trump illustrated over the last four years and Biden has only reinforced with the over 40 executive orders in his first week, the already existing powers of the executive branch are awesome. Executive orders, agency rulemaking, and the directed focus of the efforts of government agencies can effect incredible change. Congress can help Biden in this regard by quickly confirming his appointees. The sooner Biden’s people are in place, the sooner the rulemaking can begin, and the sooner federal agency action can be seen and felt by the American people. In addition, Congress should use the Congressional Review Act (CRA) to repeal rules that the Trump administration had put in place in approximately the last six month’s of its term. A simple majority vote is all that is needed for repeal. The existence of the CRA should provide additional impetus to get Biden’s nominees confirmed so its use can be avoided if he loses in 2024.
Even so, critical elements of the Democratic agenda like immigration and democracy reform are probably dead in the water without some modification to the filibuster. Considering the Republican party is now an extremist anti-democratic party that is ramping up even more restrictions on voting rights and trying to essentially void democratic elections in states that it controls, as well as the fact that our control electoral system reinforces minority rule, being unable to enact democracy reform could be a death knell for American democracy. As Lee Drutman notes, without democracy reform “there is a very good chance that America will wind up under an extended period of minority rule in which the party that represents 45–46 percent of the country can have a majority of power in Washington”. Faced with probable Republican total obstruction and the absolute necessity of passing democracy reform, Democrats will have to find a way around the filibuster.
Originally published at https://thesoundings.com on January 29, 2021.