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It Turns Out the Senate Can Abolish the Filibuster Whenever It Wants

This is how the filibuster carve-out became the hot new thing in making up the rules as you go along.

Senator Joe Manchin stands outside holding a napkin.
Mandel Ngan/Getty Images
Is Joe Manchin warming up to the idea of getting rid of the filibuster (for a quick few minutes)?

You may not have noticed, but the Senate did something two times this month about which some senators spend 99 percent of the time saying, “No, no, we can’t do that, that’s impossible!” It suspended the filibuster. That’s right—twice.

The first occasion—and this in itself is a pretty rich irony—was at the behest of Utah Tea Party right-winger Mike Lee, who asked for an up-or-down vote on his amendment to prevent the Biden administration from imposing vaccination rules on American businesses. His measure lost 48–50, but he was granted the up-or-down vote: In other words, the Senate gave Mike Lee, an unflinching foe of filibuster reform, a filibuster carve-out.

The second carve-out was ordered up to raise the debt ceiling, which both parties agreed needed to happen, but with Democratic votes only. Elizabeth Warren tweeted: “Let’s be clear what this is: an exception to the filibuster. Today’s vote is proof that it’s possible to create exceptions to the filibuster and move forward when it’s important. We did it this time, let’s do it again.”

So as it turns out, these people can do whatever they want with their rules whenever they’re in the mood. Like Dorothy in Oz, they’ve always had the power to get home. Unlike Dorothy, they’ve always known. They’ve just chosen not to use it.

This week, for some reason, it feels like things might be changing—like the door is a teensy bit more ajar to a filibuster tweak on voting rights. The Washington Post reports that the filibuster debate may soon be coming to a head. Reporter Amber Phillips seems to think—and this is actually encouraging—that change is likely and will take one of two forms. Unfortunately, those two forms are awfully different.

The first enticing possibility is a possible carve-out for voting rights. That’s straightforward: It means that any voting rights legislation would need only 50 votes to pass. Presumably, if Joe Manchin and Kyrsten Sinema and the other pro-filibuster dead-enders agree to such a carve-out, they’ll vote for the legislation. A vital measure to protect the right to vote would be on its way to Biden’s desk.

The second possibility, in which Manchin has expressed a prior interest, involves making Republicans actually mount an old-timey, talking filibuster. Make them hold the floor for hours or days on end, like the Dixiecrats used to have to do on civil rights.

That would be … well, better than the status quo. But the problem with it is that at the end of the day—or days, in this case—any bill would still need 60 votes to move to final passage. And that just isn’t happening on voting rights; the Republican Party’s only real policy goal these days is restricting the rights of Democrats to vote. In this second scenario, Democrats will be able to say, “See, we changed the filibuster!”—but it won’t make a lick of difference.

Every week, the crisis facing our democracy gets more and more dire. If it’s not voter suppression, it’s Republicans shifting authority from one statewide office to another, coincidentally from an office held now by a Democrat to one held by a Republican, which they’re trying to do in Arizona.

And if it’s not either of those tactics, it’s gerrymandering that goes way beyond past precedent. In Ohio, for example, voters in 2018 approved a ballot measure in an attempt to ensure that districts would be more fairly drawn. But Republicans instead drew congressional districts that are overwhelmingly skewed in their favor. A state legislator from Cincinnati, in defending the lines, actually said: “‘Fair,’ ladies and gentlemen, is in the eyes of the beholder. We have followed the Constitution. We have done our duty. We have listened to the people. Listening to them does not mean agreeing with them.” Imagine how “elitist” that would sound if a Democrat said it.

The evidence of Republican bad faith is light-years beyond dispute at this point. So why do the Democrats dither? There are three possible explanations.

Explanation one is that they, or some of them, don’t really believe the Republicans are going to move heaven and earth to steal the next presidential election (and rig the midterms through gerrymandering). I don’t think any Democrat actually believes this. There may be a couple who are too senile and set in their ways to grasp it—but really probably only one, at most.

Explanation two is that some of them are scared of ditching Senate tradition, or that they truly believe that a supermajority requirement enforces a culture of fair negotiating and across-the-aisle horse trading. Those of us not acculturated in Senate tradition may find that to be a load of malarkey, having witnessed the eternal dysfunction that the filibuster has wrought. But the upper house is a hidebound place. Remember—they sit at desks with the names of every prior senator who has used that desk carved on the inside. They’re surrounded by all that history. Changing a tradition, even one that they know intellectually is ridiculous and anti-democratic, gives some of them the vapors.

Explanation three is that some of them fear some kind of electoral blowback. And here, I’m thinking about the three first-termers who are up for reelection next fall: Mark Kelly of Arizona, Catherine Cortez-Masto of Nevada, and Maggie Hassan of New Hampshire. They all face tough campaigns. If they vote to end the filibuster, even as a one-off for voting rights, they likely fear—and not without reason—that their opponents will be able to raise millions more off the “fact” that the Democrats are running roughshod over the poor defenseless Senate minority.

None of these explanations are excuses, though. We’re talking about saving democracy here. Legislators cast easy and obvious votes about 75 percent of the time, and then they cast slightly trickier votes that they can finesse maybe 20 percent of the time.

But 5 percent of the time, history calls. Taking a tough, correct vote and explaining it and defending it is part of the job description, senators. Nobody said saving democracy from rapacious authoritarian thugs would be easy.