This commentary was written by Andrew Perez and Julia Rock.
There are many reasons to end the filibuster. It is undemocratic, it has been abused, it has no constitutional foundation, and it empowers a tiny minority to stop anything. But maybe the best reason to get rid of the filibuster is this: Mitch McConnell is one heartbeat away from becoming senate majority leader again, and the filibuster makes it impossible for Democrats to pass much of anything quickly, even though they could lose power at any moment.
Many pundits are already suggesting the Democrats’ control of Congress will only last until the 2022 midterm elections. But a single, unforeseen Senate vacancy could instantly kill a once-in-a-generation opportunity to pass their agenda, from new gun regulations to a badly-needed minimum wage hike, from voting rights legislation and new worker protections to a promised public option.
The Senate is split 50-50, and 10 Democratic senators are from states whose Republican governors could replace them with GOP appointees in the event they are rendered incapacitated by a health event. Among that group, six are over 70 years old. The pandemic has provided ample evidence that such health events can occur at any moment — and that’s especially true for septuagenarians and octogenarians. And while deaths of younger senators have been rare, three such casualties have occurred in the last 30 years.
Two months into Joe Biden’s presidency, Democrats have passed one major piece of legislation — a $1.9 trillion COVID-19 relief package. Democrats used the budget reconciliation process to pass the bill by a simple majority vote, but they cannot use the process for most legislation. Plus the move comes with clear downsides, as it provided the basis for killing a $15 minimum wage. It’s not a real substitute for ending the filibuster.
By preserving the filibuster, Democrats are choosing to allow Republicans to indefinitely block virtually all legislation, outside of occasional spending bills, unless they can win over 10 GOP votes. Garnering such Republican support seems like a fantasy, given the minority party’s highly conservative and disciplined opposition: No Republicans voted for Democrats’ American Rescue Plan, even though it is wildly popular with the public.
While Biden and conservative Democratic Sen. Joe Manchin of West Virginia have started publicly mulling some limited filibuster reform — a return to the “talking filibuster” — when you read about the idea it quickly starts to sound unnecessarily complicated. There is also no indication yet that it would actually stop Republicans from blocking legislation for long periods of time.
In truth, spending any time at all considering such half-measures could prove disastrous — and at least one report suggests some Biden aides are starting to appreciate this.
“People close to Biden tell us he’s feeling bullish on what he can accomplish, and is fully prepared to support the dashing of the Senate’s filibuster rule to allow Democrats to pass voting rights and other trophy legislation for his party,” Axios reported yesterday. “His team sees little chance he's going to be able to rewire the government in his image if he plays by the rules of bringing in at least 10 Republicans.”
If that anonymously sourced story proves true — a big if — it would be good news, because right now, Democrats are wasting time they don’t have. Their hemming and hawing over the filibuster is needlessly stalling the implementation of huge swaths of their agenda during what could be the only, brief opportunity they have during Biden’s presidency to put their platform into law. Their majority is so razor-thin, after all, that it could end at literally any moment.
A Majority That Could End Any Day
Democrats controlled the presidency, the House of Representatives, and the Senate from 2009 to 2010, during Barack Obama’s first two years as president, and only regained full control in Washington this year, after Sens. Raphael Warnock and Jon Ossoff won their runoff races in Georgia.
But the party’s grip on the Senate is exceedingly narrow. The chamber is split 50-50, with Democrats relying on Vice President Kamala Harris to break tie votes. In effect, any unexpected personal health crisis among key Democratic lawmakers is a political emergency imperiling the party’s hold on the Senate.
In January, days after Democrats took power in Washington, Vermont Senator Patrick Leahy was briefly hospitalized. Leahy, 80, said he “had some muscle spasms” and was given “a clean bill of health.”
Bernie Sanders, Vermont’s other senator, is 79 and had a heart attack during his presidential campaign last year.
Vermont Gov. Phil Scott is a Republican, and would have the power to appoint a replacement — one who would likely be from his party — if either of the state’s senators were unable to finish their terms.
Four other Democratic senators who are older than 70 represent states with GOP governors with the power make appointments to fill Senate vacancies — Jeanne Shaheen of New Hampshire, Elizabeth Warren and Edward Markey of Massachusetts, and Manchin in West Virginia. In all, 34 Senate Democrats are at least 60-years-old.
Democrats should know full well how perilous their majority is. In 2009, 77-year-old Massachusetts Sen. Ted Kennedy’s death from brain cancer ended the party’s 60-seat, filibuster-proof majority and nearly tanked Democrats' health care reform law, the Affordable Care Act.
After Republican Scott Brown unexpectedly won the election to replace Kennedy, Democrats were forced to pass a version of the Affordable Care Act that had already been approved by the Senate and only made light changes a few months later, using the budget reconciliation process.
“I Don't Need To Wait Another Minute”
After a gunman killed 10 people this week at a grocery store in Boulder, Colo., reportedly using an “AR-15-style pistol modified with an arm brace,” Biden demanded that Congress pass new gun regulations immediately.
"I don't need to wait another minute, let alone an hour, to take common-sense steps that will save lives in the future and to urge my colleagues in the House and Senate to act,” Biden said Tuesday, calling for Congress to ban assault weapons and high-capacity magazines, and expand background checks.
None of those ideas are likely to garner substantial Republican support, even if Democrats were to water them down. Until Democrats eliminate the filibuster, any talk of new gun rules is meaningless and should be treated as such.
The same can be said of most of Democrats’ policy agenda, including the items they’re emphasizing in Congress right now. The party’s democracy reform and voting rights legislation, H.R. 1, isn’t going anywhere with the GOP able to block it, and statehood for Washington, D.C. certainly isn’t either.
According to The Intercept, Senate Majority Leader Chuck Schumer, D-N.Y., is telling union leaders that Democrats will bring their landmark labor legislation, the Protecting the Right to Organize (PRO) Act, to the floor once it has at least 50 co-sponsors, but the chance that 10 or more Republicans support the bill is close to nonexistent.
Democrats aren’t talking much these days about a public health insurance option, which Biden pitched as an alternative to Medicare for All. Instead, they opted to use their COVID bill to deliver tens of billions of dollars to health insurance companies in order to put people on mediocre private insurance plans. But if Democrats are ever going to get serious about passing a public option, they would surely have to do it without any Republican votes.
Democrats would also likely have to significantly scale back their proposed $15 minimum wage hike in order to win any GOP support on the issue. That would mean shortchanging workers who have been paid too little for years.
Increasing the minimum wage isn’t some ideological wish-list item. The federal minimum wage of $7.25 has been in place since 2009, and it’s worth less today than it’s ever been, according to Federal Reserve research.
The people most impacted by this long-delayed wage increase are also the ones who have borne the brunt of the nation’s year-long medical emergency. A recent Brookings Institution study found that essential workers during the COVID pandemic “comprised approximately half (47%) of all workers in occupations with a median wage of less than $15 an hour.”
Democrats, in other words, have a moral obligation to fulfill their promise to raise the minimum wage immediately, because it will not happen in a McConnell-led Senate.
They similarly have a moral obligation to protect people’s voting rights, since Republicans around the country are working diligently to make it much harder to vote. According to a Brennan Center report last month, lawmakers in 43 states “have carried over, prefiled, or introduced 253 bills with provisions that restrict voting access.”
Democrats can’t move quickly on any of these pressing items with the filibuster in place. In fact, one of the few things they can do with their 51-vote majority is to change the Senate rules and eliminate the filibuster. And that might be the only way to put all — and maybe any — of these other ideas into law.
Reconciliation Is Not The Answer
Conservative Democrats’ interest in preserving the filibuster, combined with GOP intransigence, led Democrats to use the budget reconciliation process to pass their COVID relief bill by majority vote.
Reconciliation is a process historically only used once or twice per year, and it allows the senate parliamentarian to weigh in and recommend tossing measures that aren’t budget items. In February, parliamentarian Elizabeth MacDonough advised Senate Democrats their $15 minimum wage provision wasn’t budget-related and shouldn’t be part of their pandemic aid bill.
While Democrats have the power to ignore MacDonough’s opinion (a process requiring only 41 votes) or replace her — like Republicans did in 2001 when the parliamentarian wasn’t ruling their way — they chose to do neither.
Sanders has been arguing that Democrats can use the reconciliation process more often, and he’s now pushing to use reconciliation to pass a series of measures designed to lower drug prices. But Sanders’ strategy could ultimately rely on Democrats ignoring the parliamentarian — something his colleagues do not seem interested in doing.
In short, this seems like a futile and frustrating way to try to write policy, when Democrats should really just end the filibuster.
If Democrats genuinely want to enact new gun regulations or pass any of their broader policy priorities, they can’t waste any more time debating such pointless matters. They control the presidency, the House, and the Senate, and their caucus is just large enough to vote to kill the filibuster tomorrow if their members wanted to — and they should want to, as soon as possible.
Democrats have all the structural power they need to pass their promised agenda today. They might not have that power tomorrow.
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