How the Filibuster Threatens Biden’s Presidency

Joe Biden is steeped in Senate doctrine, having served there for 36 years. He has stressed "unity" as his goal for America and yearns to forge bipartisan agreement across the aisle. He does not want to do
He spoke for 21 hours trying
to defund Obamacare.
away with the filibuster. "It has been used as often to protect rights I care about as the other way around", he told Ezra Klein of Vox during the campaign.

But Biden is not entirely opposed to its discard. "I think it’s going to depend on how obstreperous they become”, he added, meaning Republicans. But now he is president, facing the all-too-familiar use of the filibuster to block so much of what the party in power wants to do. As a clear signal of the obduracy of the loyal opposition to any gesture of unity, Biden just saw not a single Republican vote for the $1.9 trillion American Rescue Act. It could only be passed by "reconciliation", a Senate rule that exempts budget-affecting bills from filibustering, enabling passage by the simple majority of 51 votes rather than the filibuster's hurdle of 60.

There is much pretense about the virtues of the filibuster. In its defense, Senate Minority Leader Mitch McConnell maintains that, “The Senate exists to require deliberation and cooperation", even quoting James Madison who said the Senate’s job was to provide a "complicated check" against "improper acts of legislation".

But there is no provision for the filibuster in the Constitution, which says Madison thought these objectives could be accomplished without one. When majority leader in 2017, McConnell seemed less interested in the filibuster's "deliberation and cooperation"; he went the shortcut route of 51-vote reconciliation in the Republicans' failed attempt to repeal Obamacare, and again that year to pass the Tax Cuts and Jobs Act. That time it was the Democratic who would not contribute a single vote.

McConnell speaks fondly of the filibuster for one reason: It transfers the power of the Senate from the majority to his minority, equipping him to block all legislation of the president and the party that the voters thought they had elected, surely not what the founders had in mind. Nor does the filibuster serve to block "improper" bills; not in today's Senate. Rather, it discourages writing bills in the first place, so easily can the filibuster bury them. Adam Jentleson, a former aide to Majority Leader Harry Reid, writes in his book that the Senate has become a "kill switch" — the book's title — that "shuts down our democratic process". Klein writes, "The modern Senate has become something the founders never intended: a body where only a supermajority can govern" .

A key bill on deck is the For the People Act of election reform. It is not budget-related and Republicans will assuredly block it by filibuster. One need only listen to McConnell, who said in a PBS NewsHour interview about the Act,

"This is an outrageous one-party takeover of the way we conduct elections in this country and there will be overwhelming total Republican opposition…It's another bill that would pass without a single Republican vote".

The Act — HR-1 in the House and S-1 in the Senate, indicating its primacy — has been waiting for this moment since January 2019 when first written. It contains a number of measures designed to make it easier to vote, which is diametrically counter to some 220 Republican bills waiting for passage in state legislatures that are designed to make it more difficult to vote. To countermand the states' targeted voting restrictions, aimed at Blacks and Latinos because they heavily vote Democratic, the bill is viewed as critical for Democrats if they are not to be engineered out of the running.

HR-1 has already been passed. Still in committee, S-1 could move to floor for debate and voting as soon as this spring. That will be the point at which Mr. Biden will realize that with the filibuster left in place this and other major programs such as immigration reform, gun control, and police reform will be dead on arrival. Majority Leader Chuck Schumer will press to scuttle the filibuster.

Democrats should reject any accusations of shoddy ethics should they ditch the filibuster. Technically, they may be in the majority only by the single vote of Vice-President Kamala Harris stepping in to break 50-50 ties. But the 50 Democratic senators will first have spoken for a whopping majority of voters over those claimed by Republicans. The population of the states the 50 Democratic senators represent exceed the populations backing the Republican senators by close to 40 million people. We ran the data through a spreadsheet and came up with that fact, so far undiscovered in the media.

Every thought piece on the subject warns that, if he filibuster is jettisoned, there will come a day — as soon as 2024 — when a Republican president backed by a Republican-controlled Senate will choose to reverse Biden's programs. But the alternative is to sit idly in acceptance of effective Republican control of the Senate by filibuster and squander four more years in the gridlock that has been persuading Americans that democracy has reached the end of the road.

The filibuster was given birth by accident during the Jefferson administration. A rule for ending debate was dropped without realizing that there was nothing to stop a senator from prattling on forever. No one put that to the test until 1837 when Whig senators tried to block a Democratic bill to reverse a prior censure of President Andrew Jackson. Save for a resurgence in the second half of the 19th century during a bout of polarization, the tactic lay largely dormant until the mid-20th century when the filibuster was used heavily by Republicans, allied with Dixiecrats (Democrats from southern states in agreement), to block legislation favoring racial equality and civil rights. It is only recently that the threat of filibuster was enough to send bills to oblivion.

Any senator can invoke the filibuster procedure, provided 41 or more senators vote to sustain it. Thus invoked, a supermajority of 60 votes is needed to pass a bill rather than the simple majority of 51.

Originally, the filibuster meant standing in the well of the Senate and speaking hour after hour about anything and everything to delay vote on a bill. Avowed segregationist Strom Thurmond, Republican of South Carolina, set the record in 1957 by speaking for more than 24 hours straight. Texas Republican Ted Cruz, in his attempt to defund Obamacare, made it to 21 hours in 2013, famously reading Dr. Seuss' "Green Eggs and Ham" to his daughters watching on C-Span.

But standing on the floor of the Senate and speaking for hours was thought to be a waste of time. Hence only the threat of filibuster sufficing to induce surrender and leave a bill stillborn in the Senate dustbin.

Chipping away at the filibuster began in 2013, when Majority Leader Harry Reid and the Democratic majority voted to end its use against appointments of federal judges. In 2017 Mitch McConnell took it a step further, doing away with the filibuster's use against appointments of Supreme Court justices as well, and in the Trump years has taken advantage of Reid's initiative to stock the federal bench with close to 200 conservative judges.

With the Senate the graveyard where legislation goes to die, the role of Congress has been appropriated by the executive branch. Presidents have used executive orders to accomplish what Congress has abdicated — an average of 260 by the last four presidents, with Joe Biden signing more in his first 30 days than any of them. The federal agencies then turn those orders into regulatory rules, effectively creating laws that congressional legislation should have created. It is an expansion of executive power that greatly bothers recent conservative appointees to the Supreme Court.

Posing a threat to President Biden's ambitious plans are two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Both are averse to ending the filibuster.

Manchin went on Fox News to make an extravagant pledge shortly after the election.

“I commit to all of your viewers and everyone else that’s watching. I want to allay those fears …when they talk about whether it be packing the courts, or ending the filibuster, I will not vote to do that”.

Why is a Democratic senator committing to Fox viewers, one might ask.

"My position on the filibuster has been steady my entire career", said Sinema, whose entire career in the Senate spans two years. "I would always oppose efforts to eliminate the filibuster", she told Oklahoma's James Lankford, whose Senate office is next door to hers. "You know what, when I make a statement, I don’t move from that”. Never mind a poll that says 61% of Arizonans rank passing major bills more important than keeping the filibuster.

Last year, Manchin said,

“The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.”

Sinema recently said,

“Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.”

Lofty principles, but that's not what the filibuster does. There is no debate. Putting politics aside and reaching compromise has become inconceivable in today's Senate. The senators' fond remembrance of yesteryear's ideals puts Biden and fellow Democrats in a bind. And Norman Ornstein, a congressional savant at the American Enterprise Institute, warns against putting too much pressure on Manchin, a conservative Democrat from a Republican state who just might turn his coat from blue to red, giving Republicans a 51-49 advantage in the Senate, and returning McConnell to power as Majority Leader.

The deal that might be offered to the pair is likely to restore the requirement that filibusters must be real, not just a threat but "more painful" as Manchin puts it, restoring a "talking filibuster" with the minority required to stand and express their views without a break for 24-hour days. As before, it would take a vote of 60 senators to end the one-sided debate — a move called "cloture" — and bring a bill to a vote. But what would that solve? Where would 10 Republicans be found to end a filibuster and allow 51-to-50 passage of a Democratic bill?

Democrats have a long list of popular reforms, certain of which will continue to sink the country into ever-staggering deeper debt. Republicans made their own contribution to the nation's debt with tax cuts and $3.5 trillion Covid relief and will now use the filibuster to make certain Democrats take it no further than what they see as the horrific $1.9 trillion payday for its putting taxpayers on the hook for defaulted pension funds and $1,400 checks to retirees unaffected by the pandemic and already receiving Social Security checks.

So which should it be? Mitt Romney, arguing against extinction of the filibuster in a Wall Street Journal op-ed, called it, "the last procedural hurdle to one-party government". Nevertheless, Jamele Bouie at The New York Times contends that, "The public business must, in some way or other, go forward". And Ezra Klein concluded in a recent editorial, "What Democrats need to do is simple: Just help people, and do it fast".