Democrats grapple with the filibuster rule that could kill their agenda

WASHINGTON — Democrats say the mass shootings that are now a routine part of American life won’t end until stricter gun-control laws are enacted. They warn the warming planet is in peril without bold action. They say that unless voting rights are protected, democracy could fail and Republicans would be newly emboldened to try to reverse legitimate elections.

And, nearly five months after the storming of the U.S. Capitol, lawmakers who on that January day feared for their lives as they hid from pro-Trump rioters said that it is essential for an independent commission to investigate what happened.

In all these cases, Democrats say the future of the country is at stake. And yet even as Senate Democrats work to solidify support within their conference for these measures, they are running up against the same stubborn reality: They need at least 10 Republican votes to overcome a filibuster and put their agenda into law. This requirement is not in the U.S. Constitution, nor is it in a law, nor set in stone through some Supreme Court precedent.

Rather, it’s a rule imposed by senators — and one that could at any moment be eliminated by a united rank of Democrats whose party controls the Senate as well as the entire federal government.

Yet Democrats are now amid their own political storm as they head home for the Memorial Day recess, unable to muster unanimity to repeal the filibuster, and feuding among themselves about whether they should make a more determined effort to do so before the midterm elections in 18 months - and their control of Congress could slip, along with the ambitious policies they have proposed.

On Friday, for the first time this congressional session, Republicans used the filibuster on a piece of legislation, killing the proposal to form a commission to investigate the Jan. 6 attack on the very institution in which they sit. A growing number of Democrats, a group that now goes beyond the liberal wing of the party, believe that if Republicans were willing to use the procedure to kill what once was considered an uncontroversial bipartisan idea, they won’t hesitate to use it on more contentious parts of President Biden’s agenda.

“If you can’t get a Republican to support a nonpartisan analysis of why the Capitol was attacked the first time since the War of 1812, then what are you holding out hope for?” said Sen. Tim Kaine, D-Va., who is an advocate of reforming and potentially eliminating the filibuster.

Sen. Chris Van Hollen, D-Md., stressed that the filibuster was not in the Constitution, calling it an anti-democratic tool used to “block the will of the majority of the American people.”

“The framers of the Constitution built plenty of checks and balances into our system and they didn’t think we needed a filibuster — it’s a complete invention of the U.S. Senate,” Van Hollen said. “The greater danger to our country right now is our inability to get big things done.”

The most explosive showdown is likely to occur during the last week of June, when the Senate is expected to consider a Democratic measure designed to protect voting rights at a time when some Republican officials have sought to overturn election results.

Without the passage of such a measure, some Democrats said they fear new laws passed by Republican-controlled state legislatures will make it harder for minority communities to vote and easier for Republicans to win elections for years to come. What to do about the bill was the subject of a tense conference-wide meeting Wednesday as anxiety within the party grows that the sweeping proposal has no chance of making it through the Senate.

But some Democratic senators, particularly those who won by narrow margins or are from states won by former president Donald Trump, insist that bipartisanship is not dead. Indeed, skepticism about flatly eliminating the filibuster goes deeper in the Democratic ranks than the much-noted opposition of Sen. Joe Manchin, D-W.Va. Members such as Sen. Jeanne Shaheen, D-N.H., said they are dismayed at Republican obstruction, but also believe that the specter of gridlock has been exaggerated by those pushing for rules changes.

“We’re not even six months into this administration. We’ve already passed a major bipartisan bill on hate crimes. We’re about to pass another major bipartisan bill that will address research and innovation,” said Shaheen, referencing bills regarding attacks on Asian Americans and competition with China, while also saying she hopes for bipartisan support for an infrastructure plan. “I think it’s an important message for the American people to see that we’re going to work together in the best interests of the country.”

The result is a party impasse over how to handle the filibuster, which has alarmed activists and lawmakers who fear Democrats are fumbling a make-or-break moment with the midterms and the threat of losing control of Congress looming.

“I 100% believe that the fate of the Democrat Party in the foreseeable future is in the balance,” said Adam Jentleson, former senator Harry Reid’s deputy chief of staff and author of “Kill Switch,” in which he proposes that a bill should be able to pass with a simple majority vote, not 60 votes in the 100-member Senate, as can now happen due to the filibuster.

Proponents of the filibuster argue it promotes bipartisanship that in turn produces durable and thoughtful policies for the country as opposed to partisan actions that can be overturned as soon as power shifts, whipsawing the nation.

But Jentleson is among the activists who argue that senators defending the filibuster and the virtues of bipartisanship are expressing a naive nostalgia for a time when the country was less divided and lawmakers of goodwill were more likely to be rewarded by voters for working across the aisle.

He argued that Democrats would do better politically to pass an array of legislation that is widely popular with the public than hold out hope for bipartisan deals that Republicans are likely to reject.

Republicans, and even some Democrats, argue it’s not that easy and that advocates of getting rid of the filibuster don’t acknowledge another problematic reality for the party: Senate Democrats don’t currently have the 50 votes needed to pass major parts of the Biden agenda even if they scrap the 60-vote threshold. For instance, Manchin doesn’t support the voting rights bill as written and it’s unclear Democrats have enough votes to enact the gun restrictions and climate change policies favored by most of the party.

Filibuster foes got a big boost last year when former president Barack Obama said that a Republican effort to block voting rights legislation should be the tipping point for Democrats. If it “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,” Obama said when speaking at the funeral of civil rights icon and late congressman John Lewis. Obama declined to comment for this article.

The former president’s top aides have been vocal in their calls to scrap the filibuster so the party’s priorities can be pushed through the Senate.

“Democracy dying so the filibuster can live would seem a terrible way for this experiment to end,” David Plouffe, a top campaign and White House aide to Obama, wrote on Twitter Friday.

Yet Biden, who witnessed Obama’s frustration with the filibuster while serving as vice president, so far has supported keeping the measure. Biden’s “preference is not to get rid of the filibuster,” White House press secretary Jen Psaki said earlier this year. “His preference is not to make different changes to the . . . filibuster rules.”

At issue is whether Democrats can convince all 50 members of their caucus to kill or reform the filibuster. Under a filibuster, 60 votes are needed to stop debate and pass a bill, in effect giving a minority party control over the majority’s agenda. There are exceptions, which enabled Republicans to push through federal court nominees without a filibuster, and Democrats to use a budget process to pass a coronavirus relief bill. And a measure to revoke the filibuster altogether cannot itself be filibustered.

So far, Democrats have mainly focused on blaming Republicans, calling them obstructionists, and Manchin for saying he would never vote to eliminate the supermajority rule. “I’m not ready to destroy our government,” Manchin said Thursday, when asked if he would vote to scrap the filibuster over the vote on the Jan. 6 commission.

Manchin is the most conservative Senate Democrat, an outlook that enabled him to win in a state where almost 70 percent of voters back Trump. To a lesser degree, Sen. Kyrsten Sinema, D-Ariz., has been similarly outspoken on the need for bipartisanship.

A Democratic Senate aide, who spoke on the condition of anonymity to discuss internal matters, said there is a misconception that Manchin and Sinema are mainly responsible for holding on to the filibuster. In reality, the aide said, there are at least 10 Democratic senators who disagree with key parts of the bills that Republicans are filibustering, but “they just don’t need to say anything crazy because Joe Manchin is out there taking all the arrows for them.”

Senate Majority Leader Chuck Schumer, D-N.Y., has not endorsed any specific changes to the filibuster, but he has repeatedly said Democrats would not tolerate Republican obstruction and that “everything is on the table” to defeat the party’s agenda.

“Look, I think the events of the last few days probably made every member of our caucus realize that a lot of our Republican colleagues are not willing to work with us on a whole lot of issues, even issues where we try to be bipartisan,” he said Friday following the failed vote on the Jan. 6 commission.

A number of liberal Democrats say the Senate was so fundamentally changed under Sen. Mitch McConnell’s tenure as majority leader that Republicans can’t be counted on to support measures that would have been bipartisan in an earlier era. He became Republican leader in 2006.

McConnell, R-Ky., who recently said that “100 percent of my focus is on stopping this administration,” has rallied his members against any rule changes. He warned Democrats in January that any attempt to eliminate the filibuster would be met with procedural obstructions that would spark “immediate chaos” in the Senate.

“This gambit would not speed the Democrats’ ambitions. It would delay them terribly,” he said at the time.

Sen. Ed Markey, D-Mass., said in an interview that a litany of issues is so important that — if Republicans block them — Democrats should eliminate the filibuster.

“If they block the January 6 commission, we will have to abolish the filibuster,” Markey said. “If the Republicans block climate action, we will have to abolish the filibuster. If Republicans block voting rights, we’ll have to abolish the filibuster. If Republicans block gun control legislation, we will have to abolish the filibuster. So I think that it’s just continuing to move towards the inevitability of the unavoidable necessity of repealing the filibuster.”

But Sen. Angus King of Maine, an independent who caucuses with Democrats, said he would only vote to eliminate the filibuster as a “last resort.” He worried that if Democrats got rid of the filibuster, they may regret it if Republicans take over the Senate in the 2022 midterms.

“I know there are people that want to just say, ‘Let’s get rid of the filibuster.’ I don’t think they’re thinking of terms of what the long-term implications could be for policies that they like. Every member is wrestling with this. There are all shades of opinion . . . I’m one of those in between.”

While the potential for a filibuster occupies the thinking behind many pieces of legislation, Senate Democrats have not yet held a discussion at their caucus meetings specifically about whether to try to kill it, King said.

“It’s a dicey subject to come up,” he said.

Many Democrats hope Friday’s vote on the commission will spark a more animated conversation in the party ranks about the filibuster and finding ways around GOP obstruction. But others believe the real moment of truth will surround voting rights - in particular, the For the People Act, a sprawling overhaul of federal elections, ethics and campaign finance law that would reverse many of the restrictions that have been pursued by Republican-controlled legislatures in the wake of the 2020 election.

But Manchin has yet to sign on the bill, preferring an alternative that would restore provisions of the 1965 Voting Rights Act that the Supreme Court struck down eight years ago. But even that bill is opposed by the vast majority of Republicans, and Manchin has flatly rejected the notion of killing the filibuster to pass it.

“This is a long game, it’s not a short game,” he said, explaining his opposition to changing the rule.

His colleagues say they are willing to play along, to a point.

“I just listen to what my colleagues tell me, and they tell me that they believe that the filibuster promotes bipartisan cooperation. Let’s give a few months to see if that’s the case,” said Sen. Chris Murphy, D-Conn., who sees the commission vote as a step in that process. “If something this common sense can’t get 60 votes, that certainly would not be an advertisement for the filibuster promoting bipartisanship.”

The internal tensions emerged in a Democratic caucus meeting on Wednesday afternoon during which the voting legislation was discussed, according to multiple senators who attended.

It was the second time this month the subject had been broached with the group of senators meeting in person. The first time, Manchin wasn’t present - he opted instead to attend an appearance by first lady Jill Biden in his home state.

This time, Manchin came and sat in silence inside the Capitol Hill conference room as a prominent Democratic elections lawyer, Marc Elias, catalogued the threats to voting rights being waged in states across the country. Then, several of Manchin’s colleagues rose and made impassioned cases for action.

None mentioned Manchin by name, but those present knew whom they had to persuade. And the words of one particular senator — Sen. Jon Tester (D-Mont.), who also has a track record of winning in a Republican state — made a particular impression, the senators present said.

“This country is a great country. It didn’t happen by accident — it happened by a lot of people working towards where we are today,” Tester said after the meeting, describing his message, which he said he did not direct at any particular colleague. “And if we’re not careful, we’ll lose it.”