The Filibuster Is the Ultimate Excuse for Democrats

By
Andrew Perez

The filibuster saga isn’t simply about Joe Manchin. It’s about the Democratic Party overall, and their continued interest in allowing process to prevent them from governing.

Senator Joe Manchin on Capitol Hill in Washington, DC. (Tasos Katopodis / Getty Images)

It’s June, and President Joe Biden has only signed one major bill, a $1.9 trillion COVID-19 stimulus package. That’s because a handful of Senate Democrats don’t want to eliminate the filibuster, a rule that requires sixty votes to advance most legislation and allows the minority party to hold up most bills.

The most prominent member of the pro-filibuster group is conservative West Virginia Democrat Joe Manchin — who, it turns out, helped spearhead potential filibuster reforms a decade ago.

But the filibuster saga isn’t simply about Manchin. It’s about the Democratic Party overall, and their continued interest in allowing process to prevent them from governing. It’s a sad, frustrating story no one wants to hear about anymore, but which controls everything that happens in Washington.

Democrats, with their narrow Senate majority, have in their power the ability to end the filibuster. In fact, voting to change the rules and eliminate or reform the filibuster is one of the few things Democrats can actually do on their own with fifty-one votes — and it would allow them to enact President Joe Biden’s agenda at whatever pace they want.

Instead, the party has consistently and deliberately opted for gridlock.

Republicans used the filibuster to stymy Democrats’ agenda for all of Barack Obama’s two terms as president — including from 2009 to 2010, the only point in Obama’s presidency where Democrats controlled both houses of Congress and had the power to pass whatever legislation they wanted. Democrats kept the filibuster in place and let Republicans grind the Senate to a halt, even though they had fifty-nine votes for much of the time (and sixty for four months).

Nearly five months into Biden’s presidency, very little has changed: Democrats are once again choosing not to use their power to remove a general block on the legislative process. They are stalling during what could be the only time during Biden’s presidency that Democrats have the power to pass his agenda. This opportunity might not last for long: Democrats, due to their narrow Senate majority, could lose full control of Congress at any moment.

A Convenient Excuse

On a basic level, the filibuster is wildly antidemocratic. It is designed to make it harder to pass legislation through what is already a fundamentally undemocratic institution by design, where every state has the same representation, no matter its size.

Southern senators deployed the filibuster against civil rights legislation in the 1950s and ’60s, which is why reform advocates are now calling it the “Jim Crow filibuster.”

The filibuster today allows a minority of senators to extend debate on legislation indefinitely, blocking a final majority vote on a bill unless the majority party can find sixty votes to end cloture.

Some Democrats say getting rid of the filibuster would destroy any concept of collegiality between Republicans and Democrats, and prevent the parties from working together. It’s a delusional argument, if they believe it at all — Republicans made it extremely clear during Obama’s presidency that they would not help Democrats pass anything, and they are doing so again now.

“One-hundred percent of our focus is on stopping this new administration,” Senate Minority Leader Mitch McConnell, R-KY, declared in May. As McConnell said last week, “it’s pretty clear the era of bipartisanship is over.”

Other Democrats fear that eliminating the filibuster will allow Republicans to pass any legislation they want when they take back the majority. Of course, Republicans haven’t had much issue enacting their agenda when they have power. But allowing the minority party to block virtually all legislation is hardly a great recipe for Democrats’ legislative or electoral success — just look at the Obama era.

The more obvious reason why Democrats would want to keep the filibuster in place is they don’t want their party to be able to pass real legislation. The filibuster allows Democrats to say they support certain measures while ensuring those measures never become law. It functions as an esoteric, all-purpose excuse for failing — and they get to blame Republicans.

As it stands, Senate Democrats can’t really pass any legislation outside of occasional budget bills — which can pass by simple majority vote under the reconciliation process but can’t involve policy — or pure corporate giveaways. The bulk of the Democratic platform is dead on arrival.

Democrats see the filibuster as a convenient excuse they can use to avoid enacting their halfway progressive campaign promises. Keeping it in place breeds disillusionment and saps all energy out of the left and democracy, more broadly, because it means that most of what Democrats say on a daily basis will never happen and that’s what they want.

It sends the message that no matter how hard voters work to elect Democrats, nothing will fundamentally change, and nothing matters at all.

Going Nuclear

During the Obama years, the filibuster empowered a relatively small minority of senators to block almost everything — including in 2009 and 2010, when Democrats controlled the presidency, the House, and the Senate, where they held a big majority. By March 2010, the Associated Press reported that Republicans were using the filibuster “at a record-setting pace.”

Sen. Jeanne Shaheen, D-NH, who recently said she doesn’t want to fully eliminate the filibuster, led a push in early 2010 to completely gut it, proposing that the sixty-vote threshold to end debate on a bill drop to fifty-one votes after several days of debate.

The idea didn’t go anywhere. At the time, Senate Democrats, including Majority Leader Harry Reid of Nevada, insisted that it would take sixty-seven votes, not fifty-one, to change the rules and eliminate or reform the filibuster.

That was never really true: as Matt Yglesias wrote in 2010, “Senate rules require 67 votes to change the rules of the Senate. However, it’s actually quite possible for 50 Senators  —  if backed by the Vice President  —  to have elements of existing procedural deemed unconstitutional.”

The maneuver is known as the “nuclear option,” a moniker designed to make the idea of passing bills by a simple, fifty-one-vote majority sound radical and frightening.

Meanwhile, Democrats pretended they were powerless and chose to permit total obstruction.

They were roundly crushed at the polls in November 2010, losing control of the House as part of the Tea Party wave.

“Understandably Frustrated With the Way Things Get Done”

Democrats didn’t start seriously start talking about eliminating or reforming the filibuster until early 2011 — when Manchin, of all people, began to push for change.

Manchin, then a freshman senator, supported and cosponsored significant filibuster reforms, although he opposed efforts to eliminate the filibuster entirely.

“West Virginians deserve a government that works for them, and they are understandably frustrated with the way things get done — or don’t — in Washington,” he said.

Both filibuster reform measures failed after several Democrats voted no, including Sen. Mark Pryor, D-AR, who is now a corporate lobbyist. Sen. Dianne Feinstein, D-CA, didn’t vote on the measures, nor did Sen. John Kerry, D-MA, who is now Biden’s climate envoy. (A decade later, Feinstein has said she’s “open” to filibuster reform, but she downplayed the need for it last week.)

The filibuster isn’t unalterable policy, and it doesn’t require sixty-seven votes to reform it, as Democrats themselves have demonstrated.

In October 2011, Reid pushed through a minor filibuster rule change with fifty-one votes. Two years later, Reid enacted a much bigger change — allowing a majority of senators to end debate on all presidential nominees other than Supreme Court nominees — through a simple majority vote, again.

After Donald Trump became president, then-Senate Majority Leader McConnell and Republicans quickly changed the rules, by majority vote, to allow the majority party to end debate on Supreme Court nominations with fifty-one votes. The change helped Republicans confirm Justice Neil Gorsuch — and later Brett Kavanaugh and Amy Barrett.

But now, instead of supporting filibuster reform, Manchin is the one stonewalling his own party’s agenda — including blocking Democrats’ landmark democracy reform bill, the “For the People Act,” legislation Manchin previously cosponsored and even co-introduced in 2019. (That move has even spurred Manchin allies to call on the senator to reconsider.)

By now, this much is clear: Democrats have the power to eliminate or substantially reform the filibuster. It’s the only way they’ll be able to even begin to govern, if they want to, before they lose power.