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The filibuster as we know it will not survive a Dem trifecta in 2021


Chris Coons, one of the Senate Dems who has generally been committed to its anti-democratic voting rules, seems to coming to grips with reality:

Unlike some of his colleagues on the left, Coons doesn’t advocate getting rid of the legislative filibuster. He once even led a letter against scrapping it. But he’s also not ruling it out.

“I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons said. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”

Indeed, I think there it is vanishingly unlikely that the filibuster rule would survive a Democratic capture of the White House and Senate in 2021:

  • People who cite formal opposition to filibuster reform/abolition from Democratic senators as dispositive evidence are ignoring the most relevant precedent: the abolition of the filibuster for judicial and executive branch appointments in 2013, which also involved a lot of Democratic senators being opposed to filibuster reform until they weren’t. Getting rid of the filibuster doesn’t need formal ex ante commitments, it just needs a response to a particular incidence of Republican intransigence over a key issue.
  • As it happens — and as Coons suggests — an issue that will unite the Democratic caucus in such a matter would present itself at the outset of a Biden administration. The economy is going to be in a shambles, and major stimulus legislation will be needed. Unlike in 2009, no Republican votes are going to be available for a stimulus bill with a Democrat in the White House. Moderate Dems are the most politically vulnerable to a bad economy. This will be the perfect vehicle for de facto filibuster abolition. Also note that Michael Bennet, in theory one of the most conservative Democrats on institutional reform, was been one of the most effective liberal influencers on the CARES Act, and substance will almost always trump procedure.
  • In more general terms, a major obstacle to filibuster reform has historically been that it empowers individual senators. But under the current polarization, this is simply no longer true. In a Senate where you need 50 votes to pass bills, moderate Senate Dems would have a lot of power, as most or all of their votes depending on the size of the majority would be necessary to pass legislation. But if the 60 vote rule persists, all Democratic senators are equally powerless except for one reconciliation bill a year.
  • It’s true that they didn’t eliminate the filibuster in 2009/10, but that’s because they didn’t need to in order to advance their top priorities: the ACA passed with no Republican support, and there were the necessary Republican votes for ARRA, Dodd-Frank, DADT repeal and Lily Ledbetter. In 2021, Dems will not have 60 votes or any Republican support for significant legislation, an entirely different strategic context.

I don’t know whether they will get rid of the filibuster entirely or just engage in ad hoc “going nuclear” exceptions that render the rule moot, but I am confident that one of these two things will happen.

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