February 11, 2021

Samilow | Senate Democrats’ Foolish Filibuster Gambit

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With the inauguration of Vice President Kamala Harris, Sen. Jon Ossoff (D-G.A.) and Sen. Raphael Warnock (D-G.A.) on January 20, Democrats took control of the Senate for the first time in six years. 

Holding united control of the federal government for the first time in a decade, many Democrats have pushed to eliminate the Senate’s legislative filibuster, which effectively requires 60 votes to pass most legislation. If Democrats do not do away with the filibuster to allow legislation to pass by simple majority, most of their priorities will die in the Senate. In the Senate Democratic Caucus, only Sen. Joe Manchin (D-W.V.) and Sen. Kyrsten Sinema (D-A.Z.) have stated that they are categorically opposed to invoking the so-called “nuclear option.” While their stubborn stance has infuriated some Democrats, Manchin and Sinema are likely saving the party from an impulsive, ill-advised power play.

Senate Democrats weren’t always in favor of eliminating the filibuster. In April 2017, when Republicans held the White House, Senate and House, 61 senators, representing a majority of the Democratic Caucus, signed a letter supporting maintaining the 60-vote threshold and preserving the rights of the minority. 

Over the course of the Trump administration, the filibuster was continually invoked to thwart the Republican agenda, holding up everything from border wall funding to abortion restrictions. It is only now that Democrats are in the majority, that they claim the filibuster needs to go. In other words, there is no principle to the current call to nuke the filibuster –– it is shameless, hypocritical and pure political expediency. 

On the filibuster, at least, Republicans have been far more consistent –– Republican Leader Mitch McConnell (R-K.Y.) repeatedly resisted Trump’s entreaties to axe the filibuster, arguing that principle and prudence supported preserving this “core tradition.”

Now, many on the left will point to McConnell’s effective handling of judicial nomination to argue Democrats must be just as ruthless in pursuing their agenda. But, Democrats’ claims about judicial confirmations have long been inaccurate. After all, it was they who began the process’s long descent into partisan rancor when they derailed the nomination of the late Robert Bork, former solicitor general. 

It was Senate Democrats who maintained unprecedented blockades of nominees of President George W. Bush, and it was Schumer who suggested in 2007, after Democrats took the Senate, that Bush should not be able to appoint any Supreme Court justices during his final two years in office.  And most importantly, it was Harry Reid who first invoked the nuclear option in 2013 to break the Republican filibuster of President Obama’s nominees to the D.C. Circuit. Republicans certainly responded with escalations of their own, such as refusing to give Merrick Garland a hearing or vote and going nuclear to confirm Neil Gorsuch, but a fair examination of the last thirty years makes clear that Democrats bear far more responsibility for the devolution of the confirmation process. 

All of which is to say that the Democrats have no high ground on this issue. Their actions during the Trump presidency and the decades preceding it have been motivated by little more than perceived political expediency. They may couch their arguments for eliminating the filibuster as an attempt to make the Senate better reflect the will of the country, but it is hard to see how ramming through a divisive, partisan agenda by the narrowest of margins will bring about the unity Americans thought they were voting for when they elected Joe Biden as president. 

Democrats may control the federal government, but this is still a very divided nation and it would behoove them to try to bind those divisions, rather than quash the minority’s rights in pursuit of radical, progressive policies.

But if principled arguments do not appeal to Senate Democrats, and I suspect they don’t, it is also worth noting that even if Democrats mustered the votes to nuke the filibuster, they likely wouldn’t benefit from it all that much. With an evenly divided Senate, the few moderates left in the Senate hold tremendous sway and Senators Manchin and Sinema, among others, have already expressed opposition to much of the progressive agenda. 

It would be hard to imagine that Manchin from the coal industry-reliant state of West Virginia –– who has already rejected Biden’s decision to revoke the permit for the Keystone XL pipeline–– would vote for the energy industry-killing Green New Deal .

Moreover, given the Democrats’ narrow majorities and that the party in the White House typically loses ground in midterm years, Democrats are in a position where they are likely to lose at least one house of Congress in 2022, bringing Biden’s agenda to a screeching halt. In other words, Democrats would benefit from the change for a mere two-year period where they hold extremely slim majorities in both houses. This is hardly a recipe for passing the type sweeping legislation that would justify going nuclear. Furthermore, it is easy to envision Republicans winning all three branches in 2024.

That leaves Democrats in a difficult spot. They may watch their legislative agenda be stymied over the course of the next two years. But this frustration is inherent to the American system, which favors the status quo and makes it difficult for legislative majorities to entirely steamroll the minority. Republicans, too, have little to show for the 2017-2019 period where they held Congress and the presidency.

Given we are in the midst of a pandemic-induced recession, Democrats would be wise to do what President Biden ran on –– deliver real economic relief and help bring the virus to heel as soon as is practically possible. Democrats saw what happened the last time they made a rash procedural change. For the sake of the country and the Senate, let’s hope they learn from their mistakes. 

Matthew Samilow is a junior in the School of Industrial and Labor Relations. He can be reached at mas748@cornell.edu. On Malott’s Front Steps runs every other Friday this semester.