BergCongressBlog

When Democrats gained control of the White House, Senate, and House of Representatives after the 2020 election, many Americans anticipated a tidal wave of change. It’s understandable why – after a turbulent election season dominated by legislative buzzwords like “universal health care,” “election reform,” and “Green New Deal”, millions were primed to believe that Biden’s presidency would be akin to FDR’s “New Deal” or LBJ’s “Great Society.” Just days after his election, conservatives warned of impending socialist spending sprees, while progressives salivated over the possibility of long-awaited liberal ideas like a $15 minimum wage hike. Nine months into the Biden presidency, it’s quite obvious that none of these extremes will come to fruition. Those who were fine-tuned to the mechanics of Congress were not surprised. They knew the truth: Biden’s biggest challenge lies not in getting support for legislation he wants to pass, but in reforming how legislation is passed. In simpler terms, the only way Biden can get major components of the Democratic Party agenda passed — increasing the minimum wage, election reform, immigration reform, climate action — is by modifying (or getting rid of) the central roadblock to all legislation in the Senate: the filibuster. 

That’s not to say that Biden isn’t undergoing a challenge to getting basic parts of the Democratic agenda passed too – he certainly is. One needs only to turn on the news to see the ongoing struggle between moderates and progressives to write the budget reconciliation bill (a filibuster-proof type of legislation that can only be invoked a few times a year and used for budget-related items only). The Democratic agenda is only as progressive as its weakest links, and right now, its weakest links are very centrist (see: Joe Manchin and Kyrsten Sinema). At the moment, if a filibuster is elicited, at least three-fifths of the Senate (60 senators) must vote to invoke cloture, allowing the bill to move forward to a vote. Therefore, without 60 votes, a bill cannot pass. As it stands, it is incredibly hard for a party to accumulate 60 seats in the Senate; this last occurred when 60 Democrats resided in the Senate during Obama’s first year in office. But after just four months, Democrats were back at 59. Because of the filibuster’s design, in order to get any legislation passed, both parties have been reliant on two options: utilizing the legislative loophole of budget reconciliation, which gives power to just several centrist swing votes (again, see: Joe Manchin and Kyrsten Sinema), or watering down their policies and authoring bipartisan bills (a rare feat). 

For these reasons, it is in Democrats’ best interest to advocate for the elimination or reformation of the filibuster; if they choose not to, they jeopardize their chances with voters next election cycle, and may not hold all three houses for a long time. The elimination of the filibuster has become increasingly popular within the Democratic Party, and its reformation has even been supported by members of the Republican Party, including Donald Trump (Breshnahan, Everett, Ferris, 2018). Eliminating the filibuster has been vehemently opposed by moderate Democrats, who see the filibuster as a tool that “encourages bipartisanship”. What is more likely to happen is the reformation of the filibuster – something moderates, like Joe Manchin, seem to be more open to (Sargent, Waldman, 2021).

There are several options Democrats could take with this route. One option is to restore the filibuster to its verbal roots by requiring senators who filibuster to hold the floor with uninterrupted speaking. Like seen in the film “Mr. Smith Goes to Washington”, this rule would make filibusters more painful and, as a result, less common. It would also open up filibusters to more scrutiny under the public eye; if the Republican Party wants to filibuster a bill to make Election Day a federal holiday, they would need to also be comfortable speaking about that subject at length for hours on end. The press and optics of an action like that may push them to leave such a task for another day. Another reform that could be made to the filibuster is lowering the voter threshold. This has been done before; originally, the filibuster threshold was 66 votes, then it was lowered to 60 (Ettlinger, 2021). Some see a compromise of moving the threshold to 55 votes more attainable than eliminating the filibuster all together. Another option is adding exceptions to the filibuster. This reform has precedent, as budget reconciliation and presidential nominations both have been given filibuster exceptions. One idea gaining traction is a filibuster carve out for legislation that works to expand voting rights; this would allow Democrats to pass election reform to combat gerrymandering and recent voter suppression laws.

Democrats have little time to address these options – midterm elections will be held in about a year from now, and it doesn’t look likely Democrats will hold both the Senate and House afterwards. The filibuster represents the single greatest obstacle to legislation for either party. The solution to this problem is to restore it to its original design – to be used rarely and with justifiable purpose. 

Bibliography

Ettlinger, Michael. “5 Ideas to Reform the Filibuster That Joe Manchin Might Actually Support.” Vox. January 19, 2021. Accessed September 28, 2021. https://www.vox.com/22238630/filibuster-reform-senate-manchin-ideas.

Everett, Burgess, John Breshnahan, and Sarah Ferris. “Trump to GOP: Dump the Filibuster before Schumer Does.” POLITICO. June 26, 2018. Accessed September 28, 2021. https://www.politico.com/story/2018/06/26/donald-trump-kill-the-filibuster-677151.

Sargent, Greg, and Paul Waldman. “Opinion | How Joe Manchin Could Be the Guy Who Saved the Filibuster and the Senate.” The Washington Post. June 22, 2021. Accessed September 28, 2021. https://www.washingtonpost.com/opinions/2021/06/22/joe-manchin-save-filibuster/.