Is the Filibuster a ‘Dead Rule Walking’? – RealClearPolitics

After Senate Majority Leader Chuck Schumer fell two votes short of altering the filibuster rule and easing passage of voting rights legislation, progressive opponents of the filibuster were quick to find the bright side.

Despite this setback, it has never been clearer that the filibuster is a dead rule walking, read a statement from the Fix Our Senate coalition. Forty-eight Senate Democrats support reform. President Biden, a long-time supporter of the filibuster, now supports reform. Every Democrat running for Senate, from moderates to progressives, supports reform. As the late [Senate Majority] Leader [Harry] Reid said, its not a matter of if the filibuster will be eliminated, but when and who is in charge when that happens. Former Reid aide and author of the anti-filibuster book Kill Switch Adam Jentleson shared on Twitter that the trajectory is clear. Dems have crossed the rubicon & grasp the need for reform in a way they didn't before. Jonathan Chait of New York magazine wrote, [N]early the entire Democratic Party has figured out that, in the long run, the filibuster hurts them more than it hurts Republicans. The next time Democrats gain control, they will do away with whatever remains of it.

The eventual end of the legislative filibuster is absolutely a plausible scenario. But filibuster opponents should be careful not to assume it is an inevitable scenario.

Filibuster abolition does appear to have become the position of most Democrats: A recent CBS News poll found 58% of Democrats want to end the filibuster, versus only 14% who want it kept. But even in this era of polarized politics, a Senate majority typically includes at least a few members who have an interest in keeping some distance from the national party and displaying a degree of independence.

We saw such a political dynamic during the Trump administration, when three Senate Republicans refused to go along with repealing the Affordable Care Act not a lot, but enough to derail one the biggest items on the presidents legislative agenda. Back in 2005, when the Republican Senate majority threatened to set aside the filibuster to advance contested judicial nominations, a bipartisan Gang of 14 denied them the votes and forged a compromise confirming most of the nominees at issue. Now we are seeing it today, as West Virginias Joe Manchin and Arizonas Kyrsten Sinema were enough to quash a rule change and, with it, two voting rights bills dear to President Biden.

Also complicating matters is the six-year term, designed to insulate senators more than House members from the political passions of the moment and encourage taking the long view. Those planning to spend many years in the Senate have long protected the filibuster, knowing that even if they are in the majority today, they may be in the minority tomorrow. With the filibuster, they ensure the ability to wield power regardless of who is president, speaker and majority leader.

Moreover, as Manchin and Sinema have shown this past year, senators who want to display independence from party leaders, but also pass legislation, need the filibuster to necessitate broad compromise. Except in cases when one party holds a huge majority, that usually involves bipartisanship. Without the filibuster, party leaders can more easily marginalize mavericks.

Progressive filibuster opponents believe their path to success lies in increasing Democratic numbers in the Senate, rendering any mavericks impotent. They are rightly heartened by the number of Democratic Senate candidates in this election cycle squarely in support of abolition. With two Republican-held seats in Biden-won states on the ballot this year, and no Democratic-held seats in Trump-won states, slightly expanding the Democratic majority is not out of the question. Still, expanding the presidents partys Senate majority and keeping it in the House which would require losing no more than four seats in the lower chamber is an extremely tall order in a midterm election year, made even taller by Bidens low approval rating. And without control of the House, a Democratic Senate majority wouldnt have much incentive to prioritize abolishing the filibuster, since whatever legislation they passed would get bottled up in the House anyway.

This is why Chait speaks of the next time Democrats gain control. The main hope of progressive filibuster opponents lies in the next time their party possesses the White House, House and Senate. Democrats cant be very hopeful about the Senate elections in 2024, when the map tilts in the opposite direction: All three of the Democrats seats from Trump-won states will be on the ballot, and no Republican seats in Biden-won states will be. So the next Democratic trifecta could be at least several years away. Will that Democratic majority be homogeneous enough to muscle through filibuster abolition? Will filibuster abolition even be top of mind at that point in time? Its impossible to know.

Even today, the 48 Democrats who voted in favor of the rule change did not vote for permanent abolition. They did not even vote for a permanent rule change. What Schumer proposed was a one-time change that would effectively put a finite end on Senate debate and lead to a simple majority vote on the Democrats voting rights bills. Manchin and Sinema resisted on the knowledge that if you change the legislative filibuster by simple majority once (which requires exploiting a loophole in the rules known as the nuclear option), then you have set the precedent that the filibuster can be waived anytime a majority feels like it, and the filibuster is effectively no more. Some of the other 48 have previously expressed reluctance to get the rid of the filibuster, but concluded that voting rights merited an exception.

But what if the next time Democrats control the White House and Congress, voting rights isnt the big issue on their agenda? Would all of those in the 48 who are still in the Senate at that point still commit to filibuster reform or abolition by simple majority vote? Or will they have been in the Senate long enough probably after experiencing at least one more stint in the minority to take the institutionalist position?

This scenario presumes that Republicans havent abolished the legislative filibuster by that point. The next time they control the White House and Congress, they could well argue (much like Democrats often do today) that Democrats will get rid of the filibuster the first chance they get. So they might as well do it first and get something out it. That could well happen, though in 2017, Senate Majority Leader Mitch McConnell snubbed such a request from President Trump. And both McConnell and his possible successor, John Thune of South Dakota, said they will keep the filibuster in place if they take the majority.

To take such a dramatic step in all likelihood requires a powerful incentive. Some like Chait think Republicans dont have such an incentive, assuming all they want are tax cuts (which can be passed via the filibuster-proof reconciliation process) and judges (for whom the filibuster has already been nuked).

Democrats nuked the procedural tool in 2013 for lower court nominees after Republicans refused to allow confirmation of any of President Obamas judges to the second-most important judicial body, the United States Court of Appeals for the District of Columbia Circuit. Democrats concluded that control of the judiciary would always remain in Republican hands if they could never get their nominations through. While Democrats stopped short of applying the rule change to Supreme Court nominees, Republicans finished the job in 2017, after preventing Obama from filling a vacancy the year prior, thereby locking in a conservative Supreme Court majority for the foreseeable future.

The possibility remains that the Republicans agenda is not stuck in 2017 and, given the opportunity, they will find things they want to do beyond tax cuts and a judicial agenda.

In fact, Republicans are the ones who got rid of the filibuster in the House, back in 1890.

For much of the 19th century, the filibuster was more common in the House than the Senate. Then newly installed Republican Speaker of the House Thomas Reed enacted a sweeping rules reform that stripped the minority of its ability to deploy dilatory tactics. But things didnt work out quite as Republicans planned. Their narrow majority had become more ideologically diverse, including Eastern business owners who liked protective tariffs, Western populists who wanted looser currency, and Northerners who supported voting rights for African Americans. Plus, Democrats still had filibuster power in the Senate. Reed pushed through a voting rights bill on a plurality vote, but the Senates protectionists prioritized a new tariff bill, and then the partys Western faction joined Democrats in a filibuster of the voting rights bill. After the 1890 midterm elections, Democrats had taken control of the House. And in 1892, they claimed the White House and the Senate.

The filibuster is not on an inevitable path to its demise; a lot of political stars still need to come into alignment. And then, even if that happens, what follows may not be what the majority expects.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show The DMZ, and host of the podcast New Books in Politics.He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.

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Is the Filibuster a 'Dead Rule Walking'? - RealClearPolitics