This would be a mistake, both for the institution of the Senate and for the narrow partisan interests of the Democrats.
One might think that the party’s experience the last time it brought a hatchet to the filibuster would warn it of any repetition, but institutional memories aren’t exactly long in Washington these days.
In 2013, Senate Majority Leader Harry Reid blew up the filibuster for most of the presidential nominations. It would no longer require a cloture vote, passed with the backing of 60 Senators, to approve the candidates, but a simple majority. Reid did so against warnings from then-minority leader Mitch McConnell because he and the Democrats had frothed themselves up to validate Obama candidates in the DC Circuit Court of Appeals.
Proponents of the move relied on it misleading accounting for filibusters Arguing Republican tactical extremism justified the move. Regardless of this, the democratic majority prevailed and then paid the price in due course.
It’s a cliché for senators who support the filibuster to say that control over the investable body is changing. The triumphant, inflamed majority of today who are trying to get rid of the filibuster are the contested, desperate minority of tomorrow, which is thereby exerting influence that they would otherwise not have.
This is a piece of conventional wisdom that is totally true.
Three years after Reid’s move, McConnell was the majority leader and President of Donald Trump. McConnell took Reid’s change and used it to turn Democrats into spectators as he reshaped the federal judiciary. Trump got about as many candidates to federal appeals court in four years as Obama got in eight years.
Then, when the Democrats filibustered Neil Gorsuch’s Supreme Court nomination, McConnell used Reid’s precedent to end the filibuster for Supreme Court nominations. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are now in the Supreme Court.
Democrats, including Chuck Schumer, said they regretted what Reid had done, although Schumer now appears to have gotten over it.
If the rules surrounding the filibuster have changed over the years, the basic practice begins with the start of the Senate. As noted by the Senate website, Pennsylvania Senator William Maclay wrote in his diary in the fall of 1789 of the Virginia Senatorial Scheme of “wasting time lest we pass the bill.”
The tactic got its name in the mid-19th century and has remained part of the Senate’s identity ever since.
Attempts are now being made to brand the filibuster as an instrument of hatred and oppression. On CNN, Rep. Jim Clyburn said the other night, “In recent years it has been there to suppress voters by denying civil and voting rights.”
The filibuster of mid-20th century civil rights legislation is rightly notorious, but the fact is that unlike Clyburn, the filibuster has been used in recent years to thwart Trump’s legislative agenda as much as possible.
In April 2017, 33 Senate Democrats, including Kamala Harris, signed a letter urging them to maintain the tactic, as McConnell noted in his speech against a move against the filibuster. Schumer and Dick Durbin loudly supported it.
Of course, Biden himself is largely in favor of the filibuster on the file. In 2005 he said: “The Senate should not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment.” As recently as last year, he said that “quitting the filibuster is a very dangerous step”.
The Democrats are now obviously changing their minds because they control the Senate. But the timing is still not right for them. It’s not like the Democrats have a robust majority. You have the slightest advantage in a 50:50 Senate thanks to Harris. Unexpected retirement or illness could jeopardize their control, and there is little guarantee they will hold the majority after 2020.
Even if they ended the filibuster tomorrow, it’s not clear that their most valuable priorities, like the bill to vote on H.R. 1, could even get 50 votes.
Biden and Manchin are flirting with the idea of restoring the “speaking filibuster” that senators must hold the word for in order to keep a filibuster going. That makes even less sense. The practice of so-called dual tracking, which emerged in the 1970s, enables the majority of the Senate to turn to other business, while the minority maintains a “silent filibuster”.
A return to the talking filibuster would allow Republicans to devour more Senate time and grab the attention of cable TV and social media.
Despite all this, the Democrats could at some point convince themselves to take action against the filibuster anyway – and experience another temporary satisfaction and lingering regret.