The standoff for control over the U.S. Senate ended Monday with GOP leader Mitch McConnell declaring victory, even though he failed to secure his main demand: an official commitment, by Senate Democrats, to preserving the filibuster.
What he got instead, he said, was a personal commitment from Democratic Senator Kyrsten Sinema of Arizona that “under no circumstances would she change course” on her recently restated complete opposition to eliminating the filibuster. As McConnell noted, Sinema and West Virginia Democrat Joe Manchin both publicly announced this week that they remain committed to the rule and are not open to changing their minds.
“I will not vote to bust the filibuster under any condition, on anything that you can think of,” Manchin told The Washington Post’s Greg Sargent. “I believe very strongly in bipartisanship.”
Manchin is regurgitating one of the most common defenses of the procedure: that it forces bipartisanship, which is its own innate good. What senators and filibuster-defenders want is to return to an idealized bipartisan past. The filibuster should force compromise and bipartisanship; the fact that it doesn’t is almost immaterial. Instead of fixing the filibuster, they seem to argue, the filibuster should fix the senators.
That seems unlikely to happen in time to rescue Joe Biden’s first term. And it doesn’t explain the extent of the filibuster’s appeal. Senators like Manchin and Sinema seem to want to protect it as a means of signaling to their constituents that Democrats will be unable to go too far. Neither wishes to be seen as too loyal to a Democratic Party that isn’t particularly popular in their home states, and all senators have easy access to polling that shows how much Americans (claim to) value cooperation and compromise over ideological fealty.
So the filibuster survives Joe Biden’s first year, severely limiting the scope of his agenda, giving 10 Republicans the power to decide what Congress can do about everything from climate change to voting rights.
At least, that would be the case if these key senators (along with a few others, like Maine independent Angus King) had expressed vehement support for “retaining the Senate’s de facto 60-vote threshold for passing legislation.”
As anyone who has spent the last several years reading (or writing) about the filibuster could tell you, the requirement is not some ancient and time-honored tradition. Congress only began requiring 60 votes to break a filibuster in the 1970s, and it wasn’t until about 10 years ago that Senate procedure demanded cloture votes to break filibusters on nearly all its legislative business. So, in other words, the “tradition” of taking for granted that all legislation (and, until recently, all judicial nominations) would require the support of 60 senators to have any hope of passing is only about as old as the Barack Obama administration.
If so many senators are committed to preserving “the filibuster,” I say we let them leave it in place officially, while getting rid of the rule in practice.
There have been a number of suggestions for tinkering with the filibuster that would “preserve” the rule in some form while making it vastly easier for legislative majorities to carry out their agendas. My favorite, from the Casey School of Public Policy’s Michael Ettlinger, is simple, clever, and fair: He proposes that we “allow any group of at least 41 senators who represent more people than the other 59 senators to block legislation—but if they don’t represent more people they can’t block.”
Ettlinger’s proposal accounts for the fact that the filibuster, as it currently exists, is an undemocratic procedure attached to an already horribly unrepresentative institution. In fact, there is a case to be made for a simple requirement that all Senate votes should follow a similar rule—similar to the “qualified majority voting” system used by the European Council and the Council of the European Union. This would have the happy effect of alleviating the inherently anti-majoritarian nature of the Senate without anyone having to rewrite the Constitution.
And that is why it’s incredibly difficult to imagine the Senate implementing the idea anytime soon. Small-state senators would cry bloody murder, and Republicans would both characterize it as a naked power grab and revert the rule once they won back a majority anyway.
But there are more modest tweaks that would serve similar purposes. Norm Ornstein has proposed simply placing the onus on the minority to make a filibuster rather than on the majority to break one. “Instead of 60 votes required to end debate,” he suggested last year, “the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.”
This is far from ideal, which is precisely why hidebound senators ought to approve of it. It could be paired with other tweaks (former Senator Tom Harkin has proposed lowering the vote threshold each day a piece of legislation is debated, which may be a bridge too far for the filibuster enthusiasts), but it would be a good start on its own. It would allow senators like Manchin to brag that they saved the filibuster, assuming that their stubborn devotion to the rule stems from some belief that their constituents approve of it.
And Americans are attached to the ideals of compromise and bipartisanship (in large part because political elites constantly tell them those things are self-evidently good). There is less evidence that Americans are strictly and explicitly married to a de facto 60-vote requirement for getting legislation through the Senate, besides certain revenue bills. The ideal outcome for Democrats, then, would simply eliminate that requirement while saving something called “the filibuster”—all in the name of the “unity” President Joe Biden promised.