Democrats Flip-Flop on the Filibuster After Winning the Senate Majority

What’s the story?

• Democrats hold a threadbare majority in the Senate given the chamber’s 50-50 divide and Vice President Kamala Harris’s tiebreaking vote, which has led to increasing calls within their party to eliminate the Senate’s legislative filibuster (also known as a cloture motion), which requires 60 votes to limit floor debate on a bill ahead of a passage vote and therefore poses a significant roadblock to partisan proposals they favor. 
• When Republicans had control of both chambers of Congress and the White House, 61 bipartisan senators signed a 2017 letter in support of the 60 vote threshold for legislation, a group that included 27 current Democratic senators and Vice President Kamala Harris. However, a growing number of Senate Democrats are speaking out against the filibuster, attacking it as a tool of “racism” and a “relic of Jim Crow” ― despite having used it frequently while they were in the minority. 
• In 2020 alone, most of the Senate Democratic caucus used the legislative filibuster to block debate on, and amendments to, a police reform bill introduced by Sen. Tim Scott (R-SC), who is the first Black senator from a Southern state since Jim Crow; coronavirus relief measures (twice in the spring, once in September, and once in October); and abortion bills drafted by Republicans.
• Democrats would need all 50 of their senators plus Harris on board to use the “nuclear option” to end the legislative filibuster, which they currently lack the votes to do. Not all Democrats have changed their stance on the filibuster now that their party holds the Senate majority: Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have publicly stated that they intend to preserve the 60 vote threshold for legislation. Several other Democratic senators have said they’re apprehensive about gutting the legislative filibuster, but may consider changes to the rule. 
• Here’s a look at what several Democrats (including President Joe Biden and former President Barack Obama, both of whom served in the Senate) were saying about the legislative filibuster when they were in the minority, and what they’re saying now that their party holds a thin majority in the Senate to go with control of the presidency and the House.

Democrats’ Filibuster Flip-Flops

PRESIDENT JOE BIDEN

• In April 2005 with Democrats in the minority, then-Sen. Joe Biden (D-DE) delivered an hour-long speech in defense of the filibuster which he said at the time might "be one of the most important speeches for historical purposes that I will have given in the 32 years since I have been in the Senate”, in which he said:

“The “nuclear option” completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about. It would change the Senate from a body that protects minority rights to one that is purely majoritarian. Thus, rather than simply being the next logical step in accommodating the Senate Rules to the demands of legislative and policy modernity, the “nuclear option” is a leap off the institutional precipice.”

• A month later in May 2005, Biden spoke on the Senate floor to say that invoking the nuclear option to end the filibuster would be the end of moderation in the Senate, and would backfire on Republicans if they followed through with their plan (which they ultimately did not pursue):

“At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. That is why the Founders put unlimited debate in… Ladies and gentlemen, the nuclear option extinguishes the power of Independents and moderates in this Senate. That is it. They are done. Moderates are only important if you need to get 60 votes to satisfy cloture. They are much less important if you only need 50 votes… 

The nuclear option abandons America’s sense of fair play. It is the one thing this country stands for: Not tilting the playing field on the side of those who control and own the field. I say to my friends on the Republican side: You may own the field right now, but you won’t own it forever. I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing. But I am afraid you will teach my new colleagues the wrong lessons.”

• With Democrats enjoying unified control of the policymaking arms of the federal government at the outset of his first term, President Joe Biden told reporters at a March 2021 press conference that he agreed with former President Barack Obama’s recent assessment of the filibuster as a “relic of Jim Crow” and added: 

“Let’s figure out how we can get this done and move in the direction of significantly changing the abuse of even the filibuster rule first. It’s been abused from the time it came into being ― by an extreme way in the last 20 years. Let’s deal with the abuse first."

FORMER PRESIDENT BARACK OBAMA

• Then-Sen. Barack Obama (D-IL) began his Senate career with Democrats in the minority and delivered a speech on the Senate floor in 2005 in which he argued against efforts to end the legislative filibuster and said it was a necessary tool for ensuring the American public gets a rigorous public debate in the Senate:

“What they don’t expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster ― if they choose to change the rules and put an end to democratic debate ― then the fighting and the bitterness and the gridlock will only get worse.”

• By the time he was serving his second term in the White House, President Barack Obama’s views changed and he called for additional limits on the use of the filibuster. After he left office, while eulogizing the late Rep. John Lewis (D-GA) in 2020 Obama called for the passage of voting rights legislation named for the congressman along with statehood for the District of Columbia and Puerto Rico while adding:

“And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”

DEMOCRATIC LEADER CHUCK SCHUMER (D-NY)

• When Republicans held majorities in both chambers of Congress along with the presidency, then-Minority Leader Chuck Schumer (D-NY) said the following on the Senate floor in April 2017: 

“I hope the Republican Leader and I can, in the coming months, find a way to build a firewall around the legislative filibuster, which is the most important distinction between the Senate and the House. Without the 60 vote threshold for legislation, the Senate becomes a majoritarian institution like the House, much more subject to the winds of short-term electoral change. No Senator would like to see that happen so let’s find a way to further protect the 60 vote rule for legislation.”

• With Democrats in control of the executive and legislative branches of government in 2021, Majority Leader Schumer said the following at a press conference on March 25th:

“I believe that big, bold action is an imperative. We must get that done, and we prefer our Republican colleagues to work with us on these things… But if they don’t, our caucus will come together and we will discuss the best way to produce that big bold action, and as I’ve said before, everything, everything is on the table.”

DEMOCRATIC WHIP DICK DURBIN (D-IL)

• During a government shutdown in 2018 which began due to a partisan impasse over funding for the border wall, then-President Donald Trump urged Republicans (who controlled both chambers of Congress and the White House) to end the legislative filibuster. In response, Sen. Dick Durbin (D-IL) said the following in an interview with ABC:

“Well, I can tell you that would be the end of the Senate as it was originally devised and created going back to our Founding Fathers. We have to acknowledge our respect for the minority, and that is what the Senate tries to do in its composition and in its procedure.”

• With Democrats controlling the legislative and executive branches of government in 2021, Durbin said on the Senate floor that “the filibuster was born, not as a sacred constitutional principle but an offhanded clerical suggestion” and added:

“It’s time to change the Senate rules and stop holding this Senate hostage. We cannot allow continued misuse of arcane rules to block the will of the American people. I urge my colleagues to defend democracy by making the changes needed.”

SEN. CORY BOOKER (D-NJ)

• Booker signed the 2017 letter in support of the legislative filibuster while the GOP controlled Congress and the presidency, saying in a press conference that year, “My colleagues and I, everybody I’ve talked to, believe that the legislative filibuster should stay there, and I will personally resist efforts to get rid of it.” He expanded on that in 2019, telling Politico: 

“We should not be doing anything to mess with the strength of the filibuster. It’s one of the distinguishing factors of this body. And I think it is good to have the power of the filibuster.”

• With Democrats in control of Congress and the presidency in 2021, Booker told HuffPost:

“For the sake of our vulnerable populations, for the sake of America doing big things again, the filibuster has to be reformed.”

SEN. ELIZABETH WARREN (D-MA)

• Warren was a signatory of the 2017 letter supporting the legislative filibuster during the period when Republicans had unified control of Congress and the White House and participated in filibusters that blocked numerous GOP-backed bills and sought to block the administration’s nominees. 
• During a Democratic presidential primary debate, Warren said: 

“The filibuster is giving a veto to the gun industry. It gives a veto to the oil industry. It’s going to give a veto on immigration. … We are willing to roll back the filibuster, go with the majority vote and do what needs to be done for the American people.”

• In March 2021, with Democrats controlling the presidency and both chambers of Congress, Warren told Axios: 

“The filibuster has deep roots in racism, and it should not be permitted to serve that function, or to create a veto for the minority. In a democracy, it’s majority rules.”

SEN. ED MARKEY (D-MA)

• Markey signed the 2017 letter in support of the legislative filibuster when Republicans controlled Congress and the presidency, and at the time said Democrats would move to reverse the “nuclear option” when they next attained the majority to restore the 60 vote threshold for Supreme Court nominees: 

“We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people who are nominated rather than just someone who passes a litmus test.”

• With Democrats in control of Congress and the presidency in 2021, Markey tweeted that, “The filibuster was created so that slave owners could hold power over our government” ― a claim given “three Pinocchios” by the Washington Post fact-checkers. He also told WBUR News:

“The filibuster must go. It’s something that’s rooted in a racist past, and it’s used today as a way of blocking the progressive agenda, which President Biden is proposing ― environmental justice, racial justice, economic justice.”

SEN. BRIAN SCHATZ (D-HI)

• Schatz also signed the 2017 letter supporting the legislative filibuster when Republicans had control of Congress and the presidency, and he tweeted the following that year:

“60 votes easier to get than 51. Ignoring the other party creates rushed garbage legislation. When you do 60, it’s a compromise.”

• After Democrats won control of Congress and the White House, Schatz tweeted the following in 2021:

“The filibuster was never in the constitution, originated mostly by accident, and has historically been used to block civil rights. No legislatures on earth have a supermajority requirement because that’s stupid and paralyzing. It’s time to trash the Jim Crow filibuster.”

— Eric Revell

(Photo Credit: Biden: The White House via Flickr / Public Domain | Obama: Obama White House Archived via Flickr / Public Domain | Schumer: mdfriendofhillary via Flickr / Creative Commons | Booker: Gage Skidmore via Flickr / Creative Commons | Durbin: Senate Democrats via Flickr / Creative Commons | Warren: Gage Skidmore via Flickr / Creative Commons | Markey: Senate Democrats via Flickr / Creative Commons | Schatz: Senate Democrats via Flickr / Creative Commons)