Unfortunately, wins have been hard to come by. Democrats have failed to find consensus within their own party, and Republicans have deftly employed some of the same parliamentary procedures that Democrats used under the Trump administration.
So, in an effort to end the gridlock and resurrect the Democratic agenda, Biden recently flew to Atlanta to stump for filibuster reform, which, if approved, could spectacularly backfire.
“In the Senate, a filibuster is an attempt to delay or block a vote on a piece of legislation or a confirmation,” writes the Brennan Center. Filibusters of some form have been used in the Senate for centuries, but the rules have evolved over time. As it stands, “Once a bill gets to a vote on the Senate floor, it requires a simple majority of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actually takes 60 votes to cut off debate.” This is known as cloture.
This provides the minority party a powerful tool to derail legislation that doesn’t have broad senatorial support, and this is important. It often prevents the majority party from running roughshod over the minority; encourages bipartisanship and compromise; and it ensures that the Senate acts deliberatively, rather than rushing to approve bills based on knee-jerk reactions. While I agree that congressional obstructionism is frustrating, a hyperactive congress is just plain terrifying. After all, congress generally seems laser-focused on making more laws, growing government and meddling in Americans’ personal lives.
Obviously, the current filibuster system can be used for both good and bad, and it has. During the Jim Crow and Civil Rights eras, the filibuster was notoriously used to support an overtly racist agenda, but just because the filibuster has been misused before doesn’t mean that the tool itself is inappropriate.
In fact, Democrats have long acknowledged these truths. In 2017, Sen. Chuck Schumer (D-N.Y.) exclaimed, “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 […] let's find a way to further protect the 60-vote rule for legislation.”
Similarly, President Biden spent decades supporting the filibuster. When serving as a U.S. Senator in 2005, he even stated, “At its core, the filibuster is not about stopping a nominee or a bill, it's about compromise and moderation. The nuclear option extinguishes the power of independents and moderates in the Senate. That's it, they're done. Moderates are important if you need to get to 60 votes to satisfy cloture.” I agree.
So, what changed? In 2005 and 2017, Republicans controlled the Senate, and it was in the Democrats’ best interests as the minority party to retain the filibuster and 60-vote cloture rule so that they could obstruct Republican efforts. Fast forward a few years, and now Democrats narrowly control the Senate. They are sick of Republicans thwarting their agendas, but I suppose turnabout is fair play.
Even so, many Democrats have been clamoring to entirely abolish the filibuster, while others want it reformed. Unsurprisingly, polling shows a strong partisan divide over whether or not to alter the filibuster. Democrats tend to favor changing the rules. Meanwhile, Republicans do not. When and if Republicans regain control, those polling numbers are destined to drastically shift.
President Biden is of the mind that reforms need to be made so that the voting rights bill specifically can be passed without needing a cloture vote of 60. However, changing Senate rules to make it easier to pass bills you like, but not for bills you hate, is an unprincipled and short-sighted manner of legislating. What’s more, these reforms could open the flood gates as the cloture rules are further eroded, which will certainly come back to haunt Democrats.
In 2013, Sen. Mitch McConnell (R-Ky.) warned Democrats senators that they would regret changing cloture rules for judicial nominees. “You’ll regret this,” he said, “and you may regret this a lot sooner than you think." He was right. Republicans followed suit when they retook power and managed to reshape the U.S. Supreme Court. A similar disaster could befall Democrats if Biden gets his way, and the Senate could lose a vitally important legislative tool in the process.
In the end, Americans need to be honest about the impetus of the filibuster reform debate. As my colleagues at the R Street Institute wrote, “Make no mistake: recent calls to eliminate the filibuster are not driven by a belief that it would result in a better legislative structure, but rather by frustration at the inability to enact specific policy proposals.”
Marc Hyden is the director of state government affairs at the R Street Institute, and you can follow him on Twitter at @marc_hyden.