The tool Democrats love to hate may be their saving grace
The Senate filibuster is often viewed as an impediment to progress when Democrats control Washington. But after Trump’s red wave last week, it’s now the last line of defense for Biden’s legacy.
Following last week’s national red wave, which saw the President-elect sweep every battleground state on his way to a second term and provide the coattails Republicans rode to control of the House and Senate, Democrats have been left to wonder where it all went wrong.
Some say the party’s brand is too toxic for white working-class voters who feel Democrats are morally superior elites focused on policing political incorrectness on social issues at the expense of clearly communicating its economic agenda.
Others believe a stronger performance from Vice President Kamala Harris would have at least helped Democrats hold their own in the down-ballot races where incumbents and challengers were unable to overcome the political headwinds from the top of the ticket.
More than a few, such as Congressional Progressive Caucus Chair Pramila Jayapal (D-WA), lament Democrats’ failure to eliminate a powerful legislative device that enabled Senate Republicans to block the most significant provisions of the Build Back Better Act, a $2.2 trillion bill that would have enacted free universal preschool for all three- and four-year-olds, capped child care costs at seven percent of a working family’s income, provided four weeks of paid family leave, extended the enhanced child tax credit for a year and more.
That device is known as the filibuster, which enables a 60-vote majority to end debate on most major legislation before senators vote on final passage at a simple-majority threshold.
And although the filibuster is the tool Democrats love to hate, it could also be the one that protects the legislative achievements they passed during the Biden administration—from the infrastructure law to the Inflation Reduction Act to the CHIPS and Science Act—since Republicans will hold just 53 seats next Congress and be unable to undo those laws without buy-in from more than half a dozen Democrats at minimum.
“I think this is where it goes back to before this election, right?” Rep. Pramila Jayapal (D-WA), chair of the Congressional Progressive Caucus and one of the most outspoken critics of the filibuster, told me on Monday afternoon. “If we had had control of the trifecta and gotten rid of the filibuster to pass minimum wage, to pass paid sick leave, to pass many of these things—abortion access—that are passing on ballot measures that are so popular—those aren't going to the state legislatures either. Those are going to the ballot—then I think we would have built some trust with the American people.”
A former Senate Democratic aide described the filibuster in its current form, which allows a senator to simply place a hold on a measure they oppose, as a joke.
“It’s broken the legislative process and should return to its origins,” the aide said, referring to the era of the “talking filibuster,” when a simple majority vote could be called to pass a bill unless a senator commanded the floor with a speech. “The current process is too easy to manipulate and is too accommodating to lazy, morally bankrupt individuals.”
Jayapal acknowledged that she isn’t championing filibuster reform now that Republicans control the executive and legislative branches.
“No, but had we had the trifecta, I would have been because we have to show that government can deliver,” she said. “And right now, even with people going to the ballot, they are bypassing their government because they don't feel like government, whether it's at the state level or the federal level, is actually going to get them the things that they need.”
President Joe Biden served in the Senate for 36 years before he became vice president to Barack Obama. Even when he ascended to the presidency in 2021, he maintained a reputation as a “Senate guy.” But he also wanted to make the most of his own governing trifecta, especially on voting rights—a hot-button issue in the wake of the George Floyd killing and the voter suppression laws in Republican-controlled states like Georgia that civil rights groups claimed restricted access to voting and disproportionately burden voters of color, new citizens and religious communities. Biden would ultimately support an exception to the filibuster so Senate Democrats could pass the Freedom to Vote Act, a bill the caucus unanimously supported while Senate Republicans opposed. But Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, then-Democrats who would later change their party affiliation to independent, opposed the carveout because they believed it weakened the institution.
After the Supreme Court repealed Roe v. Wade in 2022, Senate Democrats would later express support for a separate filibuster exception to enshrine the national right to abortion care and assisted reproductive technologies such as in vitro fertilization. Vice President Kamala Harris would later adopt also adopt this Sinema and Manchin both retiring at the end of the year, Democrats were optimistic they’d be able to bypass the 60-vote threshold. But fulfilling the promise required her to win the presidency and Democrats to flip the House and hold the Senate—none of which happened.
The Arizona Democratic Party censured Sinema for her support of the filibuster. (“You don’t say,” Sinema wrote on X in response to Jayapal’s newfound support of the filibuster now that Republicans will run Washington.) And although Manchin was widely viewed as the only Democrat who could win in ruby-red West Virginia, grassroots groups and the online left banished the two-term senator for his perceived impurity.
Mitch McConnell (R-KY), the outgoing Senate Minority Leader and one of the fiercest defenders of the filibuster, publicly rejoiced during a post-election victory lap press conference last week, that the legislative tool would remain intact under a unified Republican government.
In a floor speech in late September, McConnell characterized Democrats’ attempts to reform the filibuster, which he described as the only guardrail against majority rule, as abnormal and irrational.
“And the fact that a major political party has welcomed this short-sighted radicalism into the mainstream will be to their eternal shame,” he said. “To lean on today’s fill-in-the-blank justification is to miss entirely what’s at stake. The Senate’s protections against the vacillations of simple majority rule are bigger than Washington Democrats’ policy preferences. They’re bigger than my own.”
It’s worth noting that McConnell can take the righteous road in the filibuster debate because Republicans can advance their legislative priorities without it. The 2017 tax cuts can be extended with a simple majority through budget reconciliation since the party controls both chambers. Republicans can also saturate the federal bench with conservative judges without Democratic support. And the incoming Trump administration can undo all sorts of Biden regulations through executive action and the federal rule-making process. Democratic priorities, dating back to the civil rights movement, have always been subject to the filibuster, so it’s no wonder why the party finds it so distasteful.
And while McConnell rebuffed calls from Trump to nuke the filibuster in 2018 to prevent Democrats from blocking his agenda and voters from punishing Republicans at the polls for the gridlock, it’s unclear if the president-elect will renew the demand if he is unable to pass his legislative agenda through regular order.
Ultimately, Jayapal believes Republicans will have to answer to their constituents if they were to do so.
“I do think that when it comes to protecting the Inflation Reduction Act and many of the things that we were able to get in both the IRA and the infrastructure bill, it will be very interesting to see if the same Republicans who voted no and took the dough now vote no again,” she said. “Because these are investments that are helping their districts. These investments helped districts across the country, including many that voted for Trump. And so I think we’ll have to see what happens.”