Senate Democrats appear unlikely to nuke the legislative filibuster, despite intense pressure from the left in the wake of this month’s two victories in Georgia.
Starting Wednesday, Democrats will control a unified government for the first time since 2010. But the slim 50-50 margin in the Senate is threatening to box in progressive hopes of going big with sweeping policies unless they can convince senators to nix the 60-vote hurdle that would require GOP support for most legislation.
Supporters of going “nuclear” would need the support of every member of the Senate Democratic caucus to get rid of the filibuster, but several aren’t on board.
“I just think that it’s an opportunity to bring people together and you can talk to anybody in this place, bipartisan legislation tends to stand the test of time, and so hopefully we continue to work together and have it be encouraged by the filibuster,” said Sen. Jon Tester (D-Mont.), adding that a 50-50 Senate will “require people working together to get things done.”
Sen. Chris Coons (D-Del.), while not completely closing the door, said the Senate should go through other options — including passing legislation through reconciliation, a budget gimmick that allows bills to bypass the 60-vote procedural requirement — before putting filibuster reform on the table.
“I don’t think the first, second or third thing we do is have some debate about rules changes because the president-elect was clear throughout his campaign he will try to work across the aisle and to bring the country together. And I expect that we will do that first and then see,” said Coons, a close ally of Biden.
Supporters of nixing the filibuster see their biggest hurdle as Sen. Joe Manchin (D-W.Va.), who has vowed that he will not vote to do so. Because Democrats will only hold 50 seats, opposition from Manchin alone can squash efforts to get rid of the Senate rule.
And he indicated during a recent interview with Fox News that he remains opposed to gutting the filibuster.
“I’m going to do everything in my power to bring this country together, to heal the country, and to work in a bipartisan fashion, which is the reason that we have the Senate,” Manchin said.
But the pushback within the caucus is broader. Sen. Kyrsten Sinema (D-Ariz.) is viewed as unlikely to nix the filibuster, Sen. Dianne Feinsein (D-Calif.) has repeatedly defended it and Sen. Angus King (I-Maine), who caucuses with Democrats, has long been viewed as a potential roadblock though he appeared to warn last year that the GOP’s decision to confirm Supreme Court Justice Amy Coney Barrett at lightning speed before the election could spark rules changes if Democrats took back the chamber.
Several Democratic senators, including high-ranking chairman, have been mum on if they would support nixing the filibuster. Asked if he could promise they would eliminate the filibuster, Senate Democratic Leader Charles Schumer (D-N.Y.), who will become majority leader once Biden and the two Democratic senators from Georgia are sworn in, sidestepped.
“We are united in wanting big, bold change, and we’re going to sit down as a caucus and discuss the best ways to get that done,” Schumer told reporters during a recent press conference.
Democrats are entering a unified government with a long to-do list sparked by a combination of pent-up demands after four years under the Trump administration and a base that is eager to push lawmakers further to the left on issues including health care and climate change.
Schumer and Speaker Nancy Pelosi (D-Calif.) have pledged to take action on both of those subjects, as well as election reform, voting rights, immigration, criminal justice reform, changes to the tax code and infrastructure.
“If our Republican colleagues decide not to partner with us in our efforts to address these issues, we will not let that stop progress,” Schumer vowed in a recent letter to the Senate Democratic caucus.
Democrats are likely to use reconciliation to tackle some of their ambitious wish-list, and incoming Budget Committee Chairman Bernie Sanders (I-Vt.) has vowed to go as broad as possible. The loophole was used by Democrats in 2010 to pass final changes to ObamaCare and by Republicans in a failed attempt to repeal the health care law and a separate, successful push to pass a tax bill.
But the ability to use reconciliation is limited, meaning most legislative priorities will need 60 votes, including the support of at least 10 GOP senators unless the caucus is willing to change the legislative filibuster.
“We’ve got to work very hard to restore the ability of the Senate to work as a legislative body and take on the big issues facing America,” said Sen. Jeff Merkley (D-Ore.), a long-time advocate of filibuster reform.
Sen. Ron Wyden (D-Ore.) said that he supported going back to the talking filibuster — a “Mr. Smith Goes to Washington”-style change that would let senators block a bill or nominee for as long as they could stay on the floor discussing it — but acknowledged that wasn’t likely to be accepted by Republicans.
“I am not going to let Mitch McConnell stonewall the ability to meet the urgent needs of the American people through procedural kinds of approaches that just tie the place in knots,” Wyden said.
Supporters believe Democrats will ultimately be pressured to nix the filibuster or watch soon-to-be Senate Minority Leader Mitch McConnell (R-Ky.) obstruct their legislative goals, a dynamic they believe would spark backlash from the party’s base.
“There’s no longer any doubt: Senator Mitch McConnell and the GOP will never be a trustworthy partner in government, so Senate Democrats must move quickly to eliminate the filibuster as a weapon they can use to overturn the will of the voters and continue his obstruction from the minority,” said Eli Zupnick, spokesman for Fix Our Senate, a coalition of groups that support nixing the filibuster.
The group launched a six-figure ad campaign on Friday to try to build pressure on senators, in what is expected to be just the first step from supporters as they ramp up their effort to get Democrats to change the filibuster.
One idea floated by Democrats is trying to get an agreement to enact smaller rules changes that would leave the 60-vote legislative filibuster intact when it comes to ending debate on legislation but make it easier to move bills on the Senate floor.
Sen. Chris Murphy (D-Conn.), who is supportive of filibuster reforms, acknowledged that an outright nixing the 60-vote legislative filibuster was not going to happen in a 50-50 Senate given opposition from some of his Democratic colleagues.
“My hope is that we’ll be able to have a conversation about rules reform,” Murphy said. “I think we’re all interested in making sure Joe Biden’s agenda has a shot in the Senate. And let’s figure out ways that we can make sure that the minority doesn’t control the place every single day.”
Sen. Ben Cardin (D-Md.) added that there had been bipartisan discussions about enacting smaller changes.
“I’m hoping that we can advance that. The trade off is to make it easier to proceed to legislation versus guaranteed amendments and debate on the floor but preserving a broader consensus to move bills at the end,” Cardin said. “That would be significant.”
Asked if he thought McConnell would let GOP senators agree to a package, Cardin replied: “I think there’s frustration on both sides of the aisle.”