Should Senate Democrats Eliminate the Legislative Filibuster?

What’s the story?

• Democrats hold a narrow majority in the Senate by virtue of Vice President Kamala Harris’s tie-breaking vote but are facing calls to invoke the “nuclear option” and eliminate the filibuster, thereby allowing the passage of legislation with a simple majority.
• The legislative filibuster, known as a cloture motion, requires three-fifths of the Senate (typically 60 votes) to vote in favor of limiting further debate on a bill to 30 hours before a passage vote, which typically only requires a simple majority, can occur. 
• Eliminating the legislative filibuster would make the Senate much more like the majoritarian House in terms of how it considers legislation, rather than being a body driven by bipartisanship on most legislative issues.
• The leadership of the Senate’s Democratic majority hasn’t clarified whether they will pursue the elimination of the legislative filibuster ― likely because they lack the votes to do so at the moment. Doing so would open the door to the enactment of a host of liberal policy goals in the next two years, but indulging that temptation could backfire if Republicans regain unified control of the federal government in the future.

What they’re saying about eliminating the filibuster

• Senate Majority Leader Chuck Schumer (D-NY) has been reluctant to make public statements about the legislative filibuster’s future (or lack thereof). In the buildup to the Senate Republicans’ confirmation of Justice Amy Coney Barrett last fall, he warned that “nothing is off the table for next year.” 
• More recently, Schumer rebuffed an “unacceptable” Republican request to affirm the continued existence of the legislative filibuster in an organizing resolution (which will govern committee assignments in the 50-50 Senate). Schumer said it’s “an extraneous demand that would place additional constraints on the majority, constraints that have never been in place before.”
• During the 2017-18 period when Republicans held majorities in both chambers of Congress and the presidency, GOP senators resisted pressure from then-President Donald Trump to eliminate the legislative filibuster and pass bills without bipartisan support. Senate Minority Leader Mitch McConnell (R-KY), who made a public commitment to preserve the filibuster as majority leader, defended the filibuster in recent remarks on the Senate floor and noted Democrats used it repeatedly while they were in the minority in recent years:   

“The legislative filibuster is a crucial part of the Senate. Leading Democrats like President Biden himself have long defended it. Democrats themselves just spent six years using it liberally to block bills from Senator Tim Scott’s police reform to coronavirus relief. And less than four years ago, when it was Republicans who held the Senate, the House, and the presidency, twenty-seven current Senate Democrats plus Vice President Harris signed a letter insisting this long-standing rule should not be broken.”

• To invoke the nuclear option and eliminate the legislative filibuster, all 50 Senate Democrats would have to vote in favor to allow Vice President Harris to break the tie. Two notable moderate Democrats have said they won’t vote to end the legislative filibuster since their party took the majority, which for now leaves Democrats unable to use the nuclear option.
• Sen. Joe Manchin (D-WV) holds the distinction of being the only U.S. senator to vote against the use of the nuclear option to eliminate the 60 vote threshold in 2013, 2017, and 2019, when it was used by Democrats to allow a simple majority to confirm Cabinet and nominees and federal judges, and by Republicans for Supreme Court nominees and to shorten debate for lower-level nominees, respectively.
• In response to the looming showdown over the legislative filibuster, Manchin said the following in an interview on Fox News:

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

• A spokesperson for Sen. Kyrsten Sinema (D-AZ) told the Washington Post on Monday that, “Kyrsten is against eliminating the filibuster, and she is not open to changing her mind about eliminating the filibuster.” When Democrats were in the minority in the fall of 2019, Sinema told Politico:

“They will not get my vote on [nuking the filibuster]. In fact, whether I’m in the majority or the minority I would always vote to reinstate the protections for the minority. … It is the right thing for the country.”

RELATED READING

• Democrats Weigh Deploying ‘Nuclear Option’ to End Senate’s Legislative Filibuster if They Win the Majority - Should the 60 Vote Threshold Be Abolished? (7/1/20)
• Obama Calls for Elimination of the Filibuster as a ‘Jim Crow Relic’ - Should the Senate’s 60 Vote Threshold Be Abolished? (8/3/20)
• Senate Democrats Warn Republicans Against Filling Supreme Court Vacancy Or Else They’ll Eliminate the Filibuster If They Win the Majority (9/23/20)

— Eric Revell

(Photo Credit: Schumer: Senate Democrats via Flickr / Creative Commons | Manchin: Senate Democrats via Flickr / Creative Commons | Graphics: Canva.com)