Dems may be poised to take back the Senate and the White House, but without reforming or doing away with the filibuster, they may find themselves powerless. Here’s why.
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For the first two years of the Trump administration, the only barrier to the Republican-controlled Congress and White House stifling bodily autonomy with an unconstitutional 20-week abortion ban was the threat of a strategic hiccup called the filibuster. To filibuster a bill is to consign it to unlimited debate that only a rare Senate supermajority can break.
Senate Democrats and Republicans have each taken turns eliminating the filibuster for nominations for federal judges, starting at the district and circuit court levels and ending with the U.S. Supreme Court. But Justice Ruth Bader Ginsburg’s death and imminent ultra-conservative replacement to SCOTUS only amplifies the left’s call to ax the filibuster for good—to do good.
“[There’s] the very high likelihood that it will now be a 6–3 court on behalf of the powerful, rather than on behalf of government by and for the people,” Sen. Jeff Merkley (D-OR), a longtime filibuster reform proponent and progressive stalwart, told DAME Magazine.
“It makes it all the more important that we unrig the elections and unrig the Senate.”
A simple majority vote for legislation would provide an opening for Democrats to advance proactive, progressive legislation on abortion rights and abortion access, climate change, gun control, racial justice, and LGBTQ rights. At least, that’s the future progressives who spoke with DAME envision if Democrats retain their House of Representatives leadership and win control of the Senate and White House this fall. Though the filibuster staved off the 20-week abortion ban and some of the worst of President Trump and Senate Majority Leader Mitch McConnell’s (KY) agenda, it is all but certain to prevent a Democratic majority from governing should they take control in early 2021.
McConnell’s power gives him control over the Senate’s legislative agenda: what does and doesn’t get a vote in the first place. One bill that passed the Democratic-led House only to be pronounced dead on arrival in the Republican-led Senate is the Equality Act to enshrine LGBTQ protections into federal civil-rights law. Both the House and Senate have introduced versions of the EACH Woman Act to end the Hyde Amendment’s discriminatory ban on abortion coverage in federal health-insurance programs. Neither bill would pass the filibuster test if McConnell dared to permit a vote. Senate Democrats’ Women’s Health Protection Act to “codify” Roe v. Wade and shield pregnant people from state abortion restrictions and bans can’t get a vote under McConnell.
Senate Democrats recently used the filibuster to shut down Republicans’ police-reform bill. But Democrats can’t pass more robust racial-justice and police-brutality legislation—even if it does fall short of defunding the police—with the filibuster. Neither can they address the climate crisis fueling the western U.S. wildfires, nor provide the kind of coronavirus relief that keeps people sheltered and fed through the pandemic’s economic hardships.
That’s where the filibuster-elimination campaign Fix Our Senate comes in, according to Eli Zupnick, a spokesperson and a former communications director for top Senate Democrat Patty Murray (WA). Fix Our Senate represents a growing range of progressive groups ready to address many of society’s ills unearthed and exacerbated during the Trump administration and the COVID-19 pandemic, among them Indivisible, Communication Workers of America, the Working Families Party, the Brady Campaign, and Demand Justice, he said in an interview with DAME.
Zupnick outlined three arguments against the filibuster. As Senate majority leader, McConnell can trash it at any time, as he has done with other institutional norms—“He changes the rules whenever he wants to.” He invented a new “McConnell rule” to block President Obama’s final Supreme Court pick, Merrick Garland, more than eight months before the 2016 presidential election, only to advance Trump’s latest nominee, Amy Coney Barrett, less than six weeks before Election Day 2020.
In the courts, Trump and McConnell have packed every level of the federal judiciary with comparatively younger lifetime appointees cast in a largely ultra-conservative white male mold meant to last for a generation or more. “It is no longer enough to play defense and to hold the line because the line keeps crumbling beneath our feet with every terrible decision made by the Trump courts,” Zupnick said.
And that brought him to Fix Our Senate’s kicker: Proactive legislation won’t be possible without the filibuster gone. Democrats may be poised to win a slim majority but nowhere near a supermajority in the Senate. “They are not getting to 60 votes for any of the reproductive health priorities that they care about,” Zupnick said. “Simply getting rid of the filibuster is not a magic trick that allows you to pass all those things, but it at least unlocks the door.”
Democrats are hovering by the door.
Obama called the filibuster a “relic of Jim Crow” during civil rights icon John Lewis’ funeral in July, the former president’s most explicit call to date for getting rid of it. McConnell carried on that legacy when he vowed, in 2010, that his top priority would be to ensure he limited the first and only Black president to one term. “Between Obamacare and the stimulus, by July of Obama’s first year, he went from walking on water to completely upside-down,” McConnell’s former longtime top aide Don Stewart told the Associated Press in July, outlining how Republicans would repeat the same playbook should they lose the Senate majority amid a Joe Biden presidential victory.
We Testify, an organization that uplifts marginalized voices to share their abortion stories and destigmatize abortion, supports Fix Our Senate’s mission through coalition member Just Democracy. Executive Director Renee Bracey Sherman explained why: “We Testify is for abolishing any relic of slavery and the Jim Crow era, and that includes the filibuster, ICE, and the police.”
“The system is not set up to respect all of the work and energy and power that we put behind sharing our abortion stories to then meet it with political change,” she said in a DAME interview.
“The filibuster is maintaining really racist, classist discrimination, especially on abortion.”
A group of Southern Democrats filibustered the Democratic-introduced Civil Rights Act of 1964, leading to filibuster reform in the 1970s. The same rules apply today. At least three-fifths of the Senate—60 of its 100 members—must invoke what’s known as “cloture” and vote to end the specter of endless debate on a bill. A successful cloture vote means the Senate can vote on the underlying bill. If it’s unsuccessful, the bill, in its current form, is essentially kaput.
When Democrats last controlled the Senate, in the 113th Congress spanning 2013–2014, then-Majority Leader Harry Reid (NV) triggered the “nuclear option” to eliminate the 60-vote threshold for most presidential nominations, including Obama-era federal judges, excluding Supreme Court justices; foreign service officers; and cabinet-level agency leaders derailed by McConnell’s abuse of the filibuster.
“Not all modern filibusters can be easily identified because even the mere threat of a filibuster can be enough to prevent consideration of a bill, and there’s no easy source of data on threatened filibusters. However, the Senate does publicly report the number of cloture votes held—votes to break a filibuster in progress,” a 2019 Center for American Progress report found. “Cloture votes reached a high of 218 for the two-year period under the 113th Congress (2013–2014)”—under Mitch McConnell’s minority rule.
McConnell-led Republicans have deployed other procedural blockades, too. Cassandra Butts, a Black woman, attorney, and former White House deputy counsel, waited 835 days for confirmation to be an ambassador, but that never happened before her unexpected death from acute leukemia. Republican Sen. Tom Cotton (AK) put a “hold” on Butts’s nomination, praising her qualifications while openly admitting that stonewalling a close friend of Obama was his way of making institutional obstruction hurt on a personal level.
Republicans took back charge of the Senate in 2015, restoring McConnell to power that he used to erect what Politico called a “historic judge blockade,” from Merrick Garland’s Supreme Court nomination to the rest of the sprawling federal judiciary. “The pace of overall judicial confirmations under Mitch McConnell is on track to become the slowest in more than 60 years,” the outlet reported in the months leading up to the 2016 presidential election. Now, as president, Trump frequently brags about the pace of his judicial confirmations.
By holding open so many lifetime seats during Obama’s presidency and rushing to fill them under Trump’s, McConnell is viewed as the accelerant in the ongoing arson of democracy. Together, Trump and McConnnell have confirmed 218 federal judges and counting—not counting Ginsburg’s replacement, who too will need only a simple majority thanks to McConnell’s twisting of the institution. In 2017, McConnell nuked the filibuster for Supreme Court justices to confirm Neil Gorsuch to the seat that Garland might have filled, but McConnell wouldn’t even grant Garland a confirmation hearing.
The Democratic party’s de facto leader may, at last, be open to a rule change. In July, Biden indicated an openness to ending the filibuster amid Republican obstruction: “It’s going to depend on how obstreperous they become,” he said. But it was far from a robust endorsement.
Senate Democrats are so frustrated with McConnell that even holdouts like Chris Coons (DE) are reconsidering their prior support for the filibuster. “I am not sure that any majority leader in history has had less regard for the institution than Mitch McConnell. He claims he’s an institutionalist, but that’s a lie,” Sen. Michael Bennet (CO) told Vox founder and editor-at-large Ezra Klein, who subsequently wrote 9,000 words on “the definitive case for ending the filibuster.” Sen. Elizabeth Warren (MA), who spoke out against the filibuster during her 2020 presidential campaign, doubled down with Jeff Merkley in a recent Fix Our Senate discussion.
To DAME, Merkley expressed his belief that true institutionalists “should be fighting for a simple majority.” And they should be fighting to restore a robust amendment process, too, hearkening back to his Senate internship in 1976, a time when “amendments were common and blockades were rare.”
“Any Senator could raise any issue that they wanted,” he said. Those issues, in turn, were subject to debate and vote on the Senate floor instead of falling victim to pre-negotiated terms. “That created accountability with the people.”
Harry Reid’s Democratic Senate reign included GOP criticism for his use of a procedural tactic known as “filling the tree” to block amendments. But McConnell ended up filling the tree as much as Reid over comparable periods, Politico reported in 2015.
Though both parties have used the Senate’s arcane rules to their advantage, Democrats seem ready to dispense with politics as usual if the power dynamics shift after November 3. One thing that may be holding some back from killing the filibuster is should Democrats win control of the Senate, they could lose it sometime in the future to Republicans who would advance their own legislation, as McConnell did with Trump’s judicial nominees.
Merkely didn’t specify whether he wanted to end the filibuster or reform it. Either way, he’s calling for a sea change in how “probably the least deliberative legislative body in the world” works.
“I’m holding a dialogue with virtually every member of our caucus,” he said. “[In] previous years, I’ve held tons of dialogues with folks across the aisle. They generally agree that the place needs to be reformed, but then they run into the fact that their party is dedicated to this strategy of government by the powerful, and they back away from reform. So, it’s going to have to happen from the Democratic side of the aisle.”
For We Testify’s Bracey Sherman, the filibuster isn’t just about leveling the playing field, it’s about addressing and rectifying past harms. That’s why she believes filibuster abolition is key, particularly in this pandemic of racism and time of reckoning.
“Our government is actively harming Black and brown people because all of these systems are descended from an era where Black and brown people were not considered human, were not considered citizens, were not considered anything—they were just property,” she said. “Amendments aren’t enough.”
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