If Democrats Retake the Senate, Will the Legislative Filibuster Really Be in Serious Jeopardy?

John McCormack

The current Senate majority leader and his predecessor have taken to the op-ed pages of the New York Times this month to fight about the legitimacy of the legislative filibuster.

The Senate’s 60-vote threshold for advancing legislation to an up-or-down, simple-majority vote may not seem like a hot topic, but Majority Leader Mitch McConnell (R., Ky.) warned today that abolishing the longstanding rule would fundamentally change Congress.

“No Republican has any trouble imagining the laundry list of socialist policies that 51 Senate Democrats would happily inflict on Middle America in a filibuster-free Senate,” McConnell wrote. “Yes, the Senate’s design makes it difficult for one party to enact sweeping legislation on its own. Yes, the filibuster makes policy less likely to seesaw wildly with every election. These are features, not bugs.”

McConnell’s op-ed comes ten days after Harry Reid, the Nevada Democrat who served as Senate majority leader from 2007 to 2015, wrote a Times op-ed in favor of abolishing the legislative filibuster. “If a Democratic president wants to tackle the most important issues facing our country, then he or she must have the ability to do so — and that means curtailing Republicans’ ability to stifle the will of the American people,” Reid wrote.

Just how likely is it that Senate Democrats would take his advice? Obviously, they would first need to reclaim the Senate, which Republicans, who now have a 53–47 majority, are currently favored to retain. But if there is a wave election in 2020, the Senate should be in play.

Democrats have to defend one seat in deep-red Alabama (a seat they’ll likely lose if Republican Roy Moore doesn’t find a way to save them again). Republicans Cory Gardner of Colorado and Susan Collins of Maine are playing defense in states won by Hillary Clinton in 2016, while Republicans Martha McSally of Arizona, Thom Tillis of North Carolina, and Joni Ernst of Iowa are running for reelection in swing-states. Beyond that, Democrats will look to take down Republicans in a few theoretically winnable red states: David Perdue of Georgia, John Cornyn of Texas, and Steve Daines of Montana. (Daines’s race should only come into play if Montana’s Democratic governor, Steve Bullock, who is currently running for president, throws his hat into the ring.)

So Democrats have a path to netting three seats and a Senate majority in 2020. But would they really pull the trigger in 2021?

Maybe not, writes Paul Kane, a veteran Capitol Hill reporter at the Washington Post:

. . . any obituary of the filibuster might be premature, because recent history suggests Senate leaders will only pull the trigger on nixing the filibuster’s powers when there is a guaranteed big victory to follow. And it’s unclear when all the stars will align for such a major win.

This is a key point. Kane notes that Democrats’ boldest agenda items, such as Medicare for All and the Green New Deal, don’t even have majority support. More popular proposals such as raising the minimum wage would likely result in moderates from both parties coming together to compromise. It’s hard from this perspective to see the upside to abolishing the filibuster for Democrats.

Kane suggests an alternative scenario in which the lack of progress on immigration reform could be the breaking point. But though it’s a divisive issue, Senate Democrats unanimously voted for the 2013 “comprehensive” immigration-reform bill. What about, say the public option? Health care is certainly an issue that energizes Democratic primary voters, and they would be furious if they couldn’t make headway toward progressive reform despite retaking the Senate. Many congressional Democrats walked the plank for health care in 2010. Maybe the same thing could happen in 2021.

But an angry Democratic base by itself wouldn’t be enough to abolish the filibuster. Senate Democrats would likely have to be unanimous or nearly unanimous in their agreement on the issue. Unless they get to 52 seats — a very unlikely but not impossible task — they’ll need the backing of one or two red-state members, such as Montana’s Jon Tester or West Virginia’s Joe Manchin, to abolish it assuming no Republicans cross party lines. Though it’s not unthinkable, killing the filibuster would pave the way for the passage of many bills that Tester and Manchin oppose. They would rightly be blamed for those bills, and they’d also be guilty of hypocrisy.

Two years ago, 33 Democrats, including Tester and Manchin, joined 28 Republicans to urge Mitch McConnell and Chuck Schumer to preserve the legislative filibuster. “We are mindful of the unique role the Senate plays in the legislative process, and we are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body,” read their letter. “Therefore, we are asking you to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in the future.”

More than two dozen Democrats who signed that letter are still serving in the Senate, and they’d all need to flip-flop to abolish the legislative filibuster. Of course, widespread hypocrisy in Washington, on a matter of legislative procedure no less, would be about as shocking as discovering gambling going on at Rick’s Cafe. If the Senate flips next year and the filibuster survives, it’s unlikely to be because shame got the better of anyone involved.

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