How to Open Pandora’s Box: Kill The Filibuster.
It’s not really about the filibuster; it’s about cementing Venezuelan-style one-party control over the US government. It’s a power grab on steroids.
It’s been a while since I wrote about the filibuster. I try not do. Other than writing about Canadian politics, few issues send my reader elsewhere than this one. But it’s important.
Almost two years ago, only two Democrats, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), stood in the way of its elimination. The issue laid dormant for awhile, but Kamala Harris ignited the fire this week by calling for its elimination, at least for one issue.
Both Manchin and Sinema are exiting the US Senate in early January when their term ends, having chosen not to seek reelection to a new six-year term. Both basically left the Democratic Party to become independents with nearly impossible electoral paths. If the Senate remains under Democratic control—possible but not likely at this point of the election, with 39 days left until the vote counting starts—then there’s nothing in the way of a President Harris getting her wish. Make that wishes.
With Manchin and Sinema soon departing, the Senate Centrist Democratic Caucus won’t even need a phone booth to fit into. There will be no members.
Since I’ve attracted many new readers over the past couple of years, let’s revisit how the Senate could eliminate its Rule XXII provision and what that means. Rule XXII that requires a three-fifths vote to end debate on a motion. It’s the rule that creates the opportunity for a filibuster. We’re at risk of getting into arcane procedural stuff here worthy of Roberts Rules of Order, but it’s important. That’s rule’s major purpose is to honor and protect the ability of Senators to debate and promote and protect bipartisan compromise.
In most cases, such “cloture motions,” filed by the Senate’s majority leader to end debate and limit amendments, are on a “motion to proceed” to a particular bill or resolution. Without 60 votes in the 100-member US Senate, it’s hard to move debate and amend legislation, except budget-related bills, which operate under unique rules with strict subject limits (spending and taxes, mostly). You can’t “legislate” on these budget and “reconciliation” bills.
Enough of that before I head down rabbit holes that will likely lose you. For a deeper dive into the history of the filibuster, go here. The filibuster has also evolved over the years from “talking” ones - the late US Senator Strom Thurmond, then a Democrat from South Carolina, still holds the record for the longest one, 24 hours and 18 minutes in 1957 over that year’s Civil Rights Act (it failed). Now, they’re “legislative” filibusters, based on the ability of the Majority Leader to get 60 votes. We still occasionally get a “talking filibuster,” but they’re rare and don’t accomplish much.
The filibuster rules have been narrowed twice in recent years. First, the late Senate Majority Leader Harry Reid in 2013 jettisoned the filibuster for confirming executive and judicial branch nominations during the Obama Administration except for Supreme Court nominees. He was trying to increase the size (“pack”) the District of Columbia Court of Appeals, considered the second-most important court in the land. He succeeded. GOP Majority Leader Mitch McConnell added Supreme Court nominations to those requiring only a majority vote to end a filibuster against Neil Gorsuch, Donald Trump’s first of three Supreme Court nominations and confirmations.
How did Reid and McConnell change the rules? Not the way proscribed under Senate rules, which require a two-thirds vote. The Senate’s rules are supposed to be hard to change. They did it through a procedure first unearthed in the middle of the 19th Century and resurrected in 2005 that would be called the “nuclear option” for its effect on the Senate.
Here’s how it works. I’m oversimplifying here, but if the Majority Leader has 51 votes, he moves (makes a motion for) a point of order on the “supermajority” rule. The floor leader then moves to overturn the ruling of the chair, which takes only a simple majority. With 51 votes, the Senate “majority” can do almost anything it wants, but doing so has consequences on the institution’s ability to function. Supreme Court rulings affirm the ability of a simple majority to ultimately govern, making it practically impossible to require a supermajority on anything that isn’t required by the Constitution.
By the way, there are several constitutional requirements for super majorities that include ratifying treaties (Senate only), expelling members, amending the Constitution and “suspending the rules,” among others (calling for a constitutional convention and removing a president from office, etc). The 14th Amendment requires a two-thirds vote to repatriate rebels, so there’s that, too. That might come in handy again one of these days.
So, for President Harris to eradicate the filibuster, it would require a Democratic-controlled US Senate. They have that now, but with Manchin and Sinema supporting the current rule, the Majority Leader doesn’t have 51 votes—he has 49. Every other Democratic Senator (including two independents who caucus with them) favors eliminating the filibuster.
They didn’t used to. Before Harris announced her support for eliminating the filibuster to restore the former Roe v. Wade abortion “law,” President Trump wanted to get rid of it, too, mostly to repeal Obamacare. Senate GOP Leader Mitch McConnell and most Republicans stuck by their support for the filibuster, even as it throttled elements of their own agenda. McConnell famously said the Senate, especially the Democrats, would rue the day they eradicated the filibuster. It didn’t take long and included the confirmation of three Trump-nominated Supreme Court Justices.
McConnell also predicted it would contribute to wild, erratic swings of lawmaking depending on which party controlled the institution. And the Senate has changed control about eight times since 1980.
Harris, technically, as President, has no say in what the Senate decides to do other than jawbone the public and her former Senate colleagues. Her Vice President, possibly sitting in the presiding officer’s chair with a tie-breaking vote, could have a lot of say. It is possible that Vice President Tim Walz could cast the tie-breaking vote to overturn his own ruling with a deadlocked Senate. Then-US Senate President Pro Tempore Pat Leahy (D-VT) did precisely that when Reid first launched the “nuclear option” in 2013.
Could the Senate limit any elimination of the filibuster to a single issue or two? Yes. Reid did that when he successfully eliminated filibuster for executive branch and judicial nominations, careful to exclude Supreme Court nominations in his underlying motion. A Majority Leader Chuck Schumer could do the same in his motion to overturn the filibuster rule with respect to abortion-related legislation. In fact, you can rewrite any rule or precedent this way if you have 51 votes.
Sinema and Manchin both reacted very negatively to Harris’s comments. Sinema said a Senate that would reinstate Roe by a simple majority could eliminate abortion access in the same way. “To state the supremely obvious, eliminating the filibuster to codify Roe v Wade also enables a future Congress to ban all abortion nationwide,” Sinema, who left the Democratic Party in 2022, wrote on X. Except no one I know has proposed to “ban all abortion nationwide.” No state has passed a total “ban” on abortion. Not one.
Is the Senate now in danger of eliminating the filibuster and its organizational purpose to be the cooling saucer of democracy? Depending on election outcomes, not immediately, but fortunes can change, and quickly. Republicans are poised to recapture control of the Senate in the November elections. Manchin is practically certain to be replaced by the Mountaineer State’s GOP Governor, Jim Justice. Republican Tim Sheehy holds a strong lead over Democratic incumbent Jon Tester in increasingly Republican leaning Montana. If those hold, that would give the GOP 51 seats in the new 119th Congress, the thinnest of margins.
Two other Democratic incumbents, Bob Casey Jr. in Pennsylvania and Sherrod Brown in Ohio also face their toughest elections ever. The senators in this “class,” mostly elected either in 2006, 2012, or 2018 each enjoyed strong tail winds in heavily Democratic years. It’s why this class of 34 Senators has so many more vulnerable Democrats running. Dave McCormick (R-PA) is running the strongest GOP Senate race of the cycle, while Bernie Merino (R-OH) should win in increasingly GOP-leaning Ohio, home to Donald Trump’s running mate, US Sen. JD Vance (R-OH). It’s hard to imagine a Trump-Brown voter, but perhaps there are a few union households inclined to do that.
Keep an eye also in Eric Hovde (R-WI) against Sen. Tammy Baldwin (D-WI), who apparently doesn’t really live in the state and faces conflict of interest issues involving her unmarried partner. Other upsets in the making include Arizona, Nevada, Virginia, and New Jersey. Will the thought of pathological liar Adam Schiff in the US Senate wake up enough voters in California to vote for baseball legend Steve Garvey? Despite some errant polling, all incumbent GOP senators look relatively secure. Surprises are always possible.
That’s this year. In the next election of 2026, the tables turn. More Republican seats will be up than Democratic ones, and even more 2028. The next time there’s a Democratic president with a Democratic majority, even if only by one vote, the filibuster will end and with it, the Senate becomes just another House of Representatives.
Your vote for a Democratic president or Democratic candidate for US Senator is a vote to eliminate the filibuster. Just ask them. No matter that more than a dozen of them joined GOP Senators in a bill signed by 33 of their colleagues that begged McConnell to protect the filibuster. Democrats were for the filibuster before they were against it. Not one GOP Senator favors the elimination of the filibuster.
What would a Democratic majority, free of the filibuster, look like? And don’t be fooled by any spin that they just want to eliminate it to “protect reproductive rights and women’s health” (except for the unborn). It will be expanded on to include any issue they deem a priority. And they have priorities.
First, look for enactment of the badly and madly misnamed “For the People” Act from 2021, which would federalize elections, perhaps unconstitutionally. It would outlaw any requirements to present voter identification, such as proof of citizenship, to register and vote in elections. It would outlaw any state’s ability to clean their voter rolls six months before an election. It would mandate states to accept mail-in ballots for at least 10 days after “Election Day.” And that’s just for starters. You can read more here. No legislation would do more to eradicate voter integrity laws, foment distrust of our elections, and usher in one-party rule.
Second, Democratic frustrations with the composition of the current US Supreme Court could vote to expand its membership, currently set by law at 9 (it started in 1789 with 6). There are already calls by some Democrats to expand the court by four or more seats, eliminating its current (and perceived) 6-3 “conservative” majority. Getting new justices confirmed, even progressive ones well outside the mainstream, would have few obstacles, if any, to Senate confirmation sans the filibuster.
Poll after poll suggests Americans support voter ID and other voting integrity laws, including local control of elections, and don’t support “packing” the US Supreme Court. But that clearly wouldn’t stop progressive Democrats with their once-in-a-lifetime opportunity to jam their agenda. Progressives really believe you’ll love the effects of their agenda if you’ll just bend the knee (or bend over) and let them have their way. Ask the fine people of Venezuela how that’s worked out for them.
So, yes, the filibuster is on the ballot. But it’s less the filibuster that matters than what a Congress and President with no brakes would pass, sending us over the cliff into unknown and perilous territory. Your vote for US senator may mean more than your vote for president.
Love your graphics and links. Always interesting and well-researched.
This is a part of the concept of the democrat communist party that they call preserving democracy. And they support and take endorsements from zalensky who cancelled elections in his own country. That’s democracy? It’s communism. They hate Russia while trying to be like them.