Now that the U.S. Senate has passed President Biden’s COVID-19 relief package with the slimmest of margins and no Republican votes, it’s clear that Democrats face a steep challenge if they want to achieve the legislative priorities many campaigned on last fall. Standing in the way of much legislation will be the Senate’s peculiar filibuster rule, which requires a supermajority 60 votes to end debate on most matters in the 100-member body.
The relief bill snuck through the evenly-split Senate, and will now become law, because of the Senate’s so-called budget reconciliation process, that requires only a simple majority for certain legislation relating to spending, taxes and debt. Also not subject to the filibuster rule is confirmation of nominees to the federal bench, including Supreme Court nominees. As a result, for Biden and Congressional Democrats to enact much of their agenda that can’t be shoe-horned into the arcane budget conciliation rules, they’ll need to find support from 10 Republican senators. Meeting such a challenge will likely require meaningful compromise ending in legislative half loaves.
The temptation, then, is great for Senate Democrats to scrap the filibuster rule, and calls to do so have been growing within their ranks. This is particularly coming from those at the more liberal end of the spectrum, who fear much legislative action, including to increase the federal minimum wage, address climate change and protect voting rights, will stall in the Senate if the filibuster rule remains. As worthy as legislative action on these issues is, it would ill serve the country to achieve them by wiping out the filibuster.
To cite one reason that should resonate, the decidedly conservative lurch of the federal judiciary while Republicans controlled the Senate during the Trump administration is the product of Senate Democrats’ killing, during the Obama administration, of the filibuster for nominations to courts below the Supreme Court. And the eventual removal by Senate Republicans of the filibuster for Supreme Court nominees, which left the minority Democrats powerless to impact the three most recent appointments, will have profound impact for years.
Also, eliminating the filibuster rule would only further polarize the legislative process and risks a damaging ping-ponging between extremes each time Senate control changes hands. For example, the Affordable Care Act arguably survived the Trump years and Republican control of the Senate in part because there weren’t sufficient votes to prevent a Senate filibuster. It pushed Republicans into using budget reconciliation to try to pass a “skinny” bill, which was barely defeated. Imagine the devastating impact on the nation’s health-care system and economy had the ACA been wiped out and then reinstated from one administration to the next.
President Biden has signaled his opposition to ending the filibuster rule, but, while his position clearly holds sway, he lacks a vote. More telling are the views of moderate Senate Democrats, whose votes will be needed to repeal the rule. Recently, West Virginia’s Joe Manchin, previously opposed to ending the filibuster rule, signaled he might now consider some tweaking of the rule — such as to require filibustering senators to actually filibuster, by forcing them to continue to speak on the Senate floor until either they or the rest of the chamber gives up. New Hampshire’s senior senator, Jeanne Shaheen, has also echoed openness to such an approach.
But Senate Democrats should tread carefully. The Senate is — and was intended from the nation’s founding to be — an undemocratic institution, with the least populous states having a voice equal to that of the most. The filibuster rule promotes the Senate’s historic role of protecting minority views from being completely ignored. In its absence, Democrats would not have prevented the worst excesses sought by President Trump — himself an advocate for repealing the filibuster rule. If they now do away with it simply to enact their priorities, they might find their achievements being wiped away when the pendulum inevitably swings. As Senate Democrats should have learned following their elimination of the filibuster for lower-court judicial nominations, they should be careful what they wish for.