First Hurdle Cleared In the Senate; Next Is Dealing With The Senate Filibuster

The Senate’s 50 Democrats represent 41 million more Americans than do its 50 Republicans. Yet Mitch McConnell and his tyranny of the minority took the Senate hostage and refused to agree to an organizing resolution unless Democrats acceded to McConnell’s demand that he be allowed to exercise the “McConnell Veto,” by way of the Senate filibuster rules, over President Joe Biden’s agenda. The evil GOP bastard who created the destructive policy of “total obstruction” demanded minority rule by the Party of No. This extortion attempt failed.

On Monday night, Mitch McConnell caved on his demand, when two squishy-soft Democrats gave him a fig leaf for backing down, by preserving his precious Senate filibuster. The LA Times reports, McConnell says he’ll make deal with Schumer on Senate power-sharing:

Senate GOP leader Mitch McConnell of Kentucky said he’s dropping a key demand and is ready to move toward a power-sharing agreement after two Democratic senators pledged they won’t vote to do away with the filibuster.

McConnell had refused to agree to any deal with Majority Leader Charles E. Schumer of New York to share power in the 50-50 Senate without a promise that Democrats wouldn’t jettison the rule that allows the minority to block legislation by requiring 60 votes to advance most legislation.

Schumer rebuffed the idea of a guarantee. But McConnell said statements from two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, were enough.

Manchin told reporters Monday he “does not support throwing away the filibuster under any condition.” A spokesman for Sinema said she also was against eliminating the filibuster.

A spokesperson for Sinema told The Washington Post that Sinema is “against eliminating the filibuster, and she is not open to changing her mind about eliminating the filibuster.”

So you’re OK with giving Mitch McConnell a “McConnell Veto,” by way of the Senate filibuster rules, over President Joe Biden’s agenda? You’re OK with empowering a tyranny of the minority, the Party of No, when the American people just gave Democrats a mandate to lead this country out of the morass left by Donald Trump and his sycophants? This is cowardly appeasement of a bully of the worst order.

As Jamelle Bouie of the New York Times says, Democrats Should Act Like They Won the Election. And Eugene Robinson of the Washington Post says Democrats won power. Now, they need to use it.

Moreover, Sen. Sinema rarely ever speaks out on legislation ahead of a vote on a bill. She has not been a fierce advocate for any legislation of which I am aware. It’s not like she is preserving the filibuster for some fantasy “Mr. Smith Goes to Washington” moment in which she will filibuster a bad bill. I can’t imagine her ever doing anything like that. So why? Your constituents deserve an explantion.

The LA Times continues:

Justin Goodman, a Schumer spokesman, said in a statement that, “We’re glad Senator McConnell threw in the towel and gave up on his ridiculous demand. We look forward to organizing the Senate under Democratic control and start getting big, bold things done for the American people.”

In an interview on MSNBC recorded earlier Monday, Schumer said Democrats wouldn’t let McConnell “dictate” how they deal with Senate business. He accused McConnell of “trying to blockade everything.”

Manchin’s and Sinema’s stances aren’t new, but they indicate the tenuousness of the Democrats’ control of the chamber. They need all 50 Democrats in lockstep, and with the filibuster in place they’ll need 10 Senate Republicans to join them on most bills. In votes where only a majority is needed, Vice President Kamala Harris can break a tie.

Under the agreement in place in 2001, the last time the Senate was evenly split, both parties had an equal number of committee seats equal budgets for committee Republicans and Democrats, and the ability of both leaders to advance legislation out of committees that are deadlocked. But Democrats will hold the chairmanships and Schumer will set the agenda for the floor.

[The Senate has only been evenly divided three times before: in 1881, 1953 and 2001.]

Some issues can be passed with a simple majority via a balky process known as budget reconciliation, but that method has limits on what can be included and when. Already, Democrats are weighing whether to use the process to bypass Republicans on a major virus relief package Schumer wants to send to the White House by mid-March, with a follow-on package later in the year.

Manchin and Sinema, however, are among the Democrats trying to cobble together a bipartisan package that would be smaller than the $1.9 trillion plan President Biden has proposed. If no such deal comes together before the Feb. 8 start of arguments in the impeachment trial of former President Trump, that could spur Democrats to go it alone.

So Mitch McConnell’s obstructionist Party of No wants to bludgeon Biden’s big stimulus plans, with an assist from these two squishy-soft Democrats who apparently believe that you do not need any further economic assistance during this pandemic? Do they not know that this bill includes funding to ramp up production and distribution of the COVID-19 vaccine? Have they not seen the unemployment lines? The businesses closed? The people waiting in food lines? What the fuck is wrong with them? Is this all because of the bipartisan “Problem Solvers Caucus,” a sick joke that has never once solved any problem?

The AP recently reported, Biden’s choice on econ aid: Deal with GOP or go for it all (excerpt):

All of this leaves Biden with a decision that his team has avoided publicly addressing, which is the trade-off ahead for the new president. He can try to appease Republicans, particularly those in the Senate whose votes will be needed for bipartisan passage, by sacrificing some of his agenda. Or, he can try to pass as much of his proposal as possible on a party-line basis.

Democrats cannot pass Biden’s agenda on a party-line basis if these two squishy-soft Democrats are more concerned with appeasing obstructionist members of the Party of No, for unexplained reasons.

Li Zhou explains the deal at Vox, Why Mitch McConnell relented on his demands about preserving the filibuster (excerpt):

Since the organizing resolution could be filibustered — and would need 60 votes to pass — McConnell’s opposition effectively allowed him to block the measure from advancing.

And while he didn’t get the changes to the organizing resolution he wanted, McConnell’s approach still worked, in a way: Amid the impasse over the agreement, two Senate Democrats — Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — publicly restated that they would not vote to eliminate the filibuster. Without their backing, Democrats simply won’t have the numbers to do a rules change: All 50 members of the caucus would need to get behind a change to the filibuster for it to happen. (This position is consistent with stances both lawmakers have vocalized before.)

Due to Sinema and Manchin’s statements, McConnell now says he’s satisfied and willing to move forward with the organizing measure, after causing some annoying delays. Without this resolution, Democrats have been unable to formally take over committee chair positions, and new members have yet to be seated in committees. Republicans also retained the ability to oversee consideration of nominees and other policy priorities.

* * *

While McConnell is not getting the pledge he wanted from Schumer about preserving the legislative filibuster, he effectively got one from Manchin and Sinema — whose votes would be vital to approve a rules change.

Both lawmakers have issued strong statements expressing their opposition to blowing up the legislative filibuster, which requires most bills to meet a 60-vote threshold to pass.

* * *

Armed with these assurances, McConnell signaled that he’d be comfortable advancing the organizing resolution, since his focus had been keeping the filibuster around to preserve the minority’s ability to block legislation that it disagrees with. Lawmakers’ positions on the filibuster could, of course, still change, despite the statements they’ve issued.

Ultimately, keeping the filibuster is likely to make passing any sweeping legislation difficult, since Democrats would need every member of their caucus plus 10 Republicans to do so. For this reason, many of the more progressive members of the caucus, like Sens. Elizabeth Warren (D-MA) and Ed Markey (D-MA), have called for the filibuster to be abolished. And some other Democrats, including those who have been hesitant to change the rules, have acknowledged this difficulty as well.

A statement that Sen. Jon Tester (D-MT) gave to the New York Times sums up how some Democrats currently unwilling to end the filibuster are thinking about the issue. They may be in favor of keeping it now, but are open to considering more drastic action if McConnell maintains obstruction to Biden’s agenda. “If all that happens is filibuster after filibuster, roadblock after roadblock, then my opinion may change,” said Tester, who is currently in favor of keeping the filibuster.

“We can get shit done around here and we ought to be focused on getting stuff done,” Democratic Sen. Jon Tester told Politico. There has been no such “can do” commitment from Sens. Manchin and Sinema.

Manchin and Sinema have said they don’t expect their positions to shift. Whether they maintain this stance in the face of ongoing Republican opposition, however, remains to be seen.

The fight over eliminating the filibuster, a relic of the pro-slavery and Jim Crow eras, and a weapon of mass destruction in the hands of the obstructionist Mitch McConnell, is not over with this agreement on the organizing resolution. This issue is going to recur with each major piece of legislation in the Biden agenda when it comes up for a vote. Dealing with this issue cannot be avoided.

Jonathan Bernstein, an economic advisor to the Biden administration explains, Say Goodbye to the Senate Filibuster:

I’m seeing a lot of arguments right now about whether Democrats should eliminate the filibuster and move toward a majority-rules U.S. Senate. The main thing to understand about this is that the 60-vote Senate that’s been around since 2009 (and, to a lesser extent, since 1993) is unstable. It will not last.

Hardly any senators from either party appear interested in restoring the Senate that existed 30 or 40 years ago — a chamber that talked about the rights of individual senators, in which each senator was able to offer amendments and most things were decided by majority votes. Filibusters existed, but plenty of bills, amendments and nominations passed with fewer than 60 votes.

That system had a lot going for it. It encouraged compromise, but didn’t make passing most bills impossible. It gave narrow constituencies a chance to have their interests heard, because any senator could offer any bill as an amendment. And because amendments were easy to offer, senators would negotiate in order to prevent too many of them from dragging down major legislation. Whether that added up to ideal democracy or not is something that can be debated, but the Senate of the 1970s and 1980s wasn’t the older one, where filibusters were used mainly to preserve white supremacy against civil rights majorities.

Though the Senate has always been malapportioned, and that can’t be justified on any rational basis, and 1970s and 1980s senators were even less demographically diverse than senators now, at least the Senate of that era really did legislate and seemed to do a good job of representing its constituents.

Since then, Republicans decided to abuse the rules by establishing a 60-vote threshold for everything, a practice Democrats kept in place. Both parties have made it impossible for most senators to offer amendments.

Want to save the filibuster in its previous form? That would take a Gang of 30 or more, evenly divided between the two parties, all agreeing to vote to restrict debate on most bills, allowing filibusters only on rare cases, and also demanding more open voting on amendments. But that’s not going to happen. At best, maybe there are 10 senators who would make that deal and keep it. Maybe five. Maybe fewer.

In part, that’s because senators from both parties have become more frightened of tough votes on controversial measures than they are interested in using the legislative process to advanced the interests of constituencies. Yes, the leadership of both parties has made the freewheeling amendment process obsolete, but that wouldn’t have happened if individual senators from the majority party opposed it.

And in part, it’s because important elements of the Republican Party simply oppose compromise in principle, even if it costs them in other ways — and many Republican senators who might otherwise be inclined to compromise are terrified of being labeled RINOs, Republicans in name only. That’s what ended the filibuster on nominations in 2013: Republicans could have cut a deal to use the filibuster sparingly and defeat those judicial and executive-branch choices that they strongly objected to, but instead they insisted on a 60-vote threshold for all nominations, giving the Democrats a choice between majority-imposed reform or allowing the minority party to run things.

That’s the case with the filibuster rules still in place for most legislation. Ten years ago, I used to write about possible ways to adapt Senate rules for an era of partisan polarization. But the problem isn’t coming up with rules that can work; it’s finding senators who appreciate the strengths of the old Senate and want to revive it.

With few if any senators committed to a Senate in which the filibuster makes sense as part of a functional legislative body, it will be gone as soon as short-term incentives line up for eliminating it. That didn’t happen in 2009-2010 because Democrats either had 60 seats or very close to it. It didn’t happen in 2016-2017 because Republicans had practically no governing agenda.

The filibuster may survive for awhile longer in today’s 50-50 Senate only because Democratic control is so fragile. Most Democrats would rather pass as much of the party agenda as possible while they have unified government, but for West Virginia’s Joe Manchin and others in states where seats will be difficult to defend, becoming the deciding vote on a bunch of bills that may or may not play well at home is a huge risk. Still, even Manchin wants to govern, and during an era of partisan voting, helping the president of one’s own party succeed is almost always the best bet for re-election. What’s going to determine the outcome? More than likely, it will be, as it was in 2013, just how far Republicans will push them. And with this set of Republicans, that’s apt to be pretty far.

Political scientist Norman Ornstein has proposed reforming the Senate filibuster for many years. He wrote last September in The Atlantic, The Smart Way to Fix the Filibuster (excerpts):

[R]ather than scrap the filibuster entirely, the Democrats may want to instead consider reforming the procedure, so that it continues to exist for truly extraordinary circumstances, but ceases to be the easily deployed blockade it is today. Moreover, this approach would have another advantage, in that adopting it is politically feasible. Here’s why: The outright abolition of Senate Rule XXII—which now requires three-fifths of the Senate, or 60 votes, to pass a law—may be out of reach, even if Democrats win enough Senate seats … This is because at least three and possibly more Democrats in the Senate have said they are opposed to eliminating the rule. No one is more adamant than West Virginia’s Joe Manchin, but he has company in Jon Tester [and] Kyrsten Sinema.

What to do? Democrats need a backup plan, something that can get support from those reluctant to eliminate the rule completely and still provide an opening to do big things in the face of a united Republican opposition. Thankfully, there is an alternative.

The current rule in the Senate for legislation is that if a filibuster is conducted, three-fifths of the Senate—60 of the 100 senators—must vote to invoke cloture, which means stopping debate and moving toward a vote on the bill. It is a high hurdle, and the burden is perversely on the majority, not the minority, to overcome the delay.

The answer is to return the filibuster to its original intention—something to be used rarely, when a minority (not necessarily a partisan one, by the way) feels so strongly about an issue of great national significance that it will make enormous sacrifices to delay a bill. There is a simple way to do this—and, in the meantime, keep Rule XXII and mollify Manchin et al. while also providing an opening for Biden and his Democrats to get big things done. That is to flip the numbers: Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.

This change will preserve a unique feature of the Senate, preventing it from becoming just a smaller House of Representatives. It will not allow Democrats to pass everything they want. But it will stop the filibuster from standing in the way of necessary, broadly popular initiatives.

[T]he majority could keep the Senate in session around the clock for days or weeks and require nearly all the Republicans to be present constantly, sleeping near the Senate floor and ready on a moment’s notice to jump up and get to the floor to vote—including those who are quite advanced in years, such as Jim Inhofe, Richard Shelby, Charles Grassley, and Mitch McConnell. It would require a huge, sustained commitment on the part of Republicans, not the minor gesture now required. The drama, and the attention, would also give Democrats a chance to explain their reforms and perhaps get more public support—and eventually, they would get a law. A bolder option would be to raise the minority threshold to 45 votes required to continue debate, instead of 40.

[C]hanging the rules in the Senate is a necessary, if not sufficient, requirement to making progress. Fortunately, there are options besides complete elimination of the filibuster rule.

There you go Sen. Sinema. If you want to preserve this relic of the pro-slavery and Jim Crow eras, and a weapon of mass destruction in the hands of the obstructionist Mitch McConnell, I just gave you a filibuster reform that you can get behind. If you aid and abet Mitch McConnell and the Party of No in obstructing Joe Biden’s agenda, you will be a one-term senator, for sure.