The Filibuster’s Uncertain Future

A mid negotiations with Chuck Schumer about how the 50-50 Senate will be organized and run, Mitch McConnell pushed for a commitment to protect the Senate’s filibuster — the 60-vote threshold that must be reached to pass most legislation.

Schumer didn’t agree, but McConnell did get two new public commitments this week from Democratic senators Kyrsten Sinema of Arizona and Joe Manchin of West Virginia. In an interview with the Washington Post, Manchin said that he “will not vote to bust the filibuster under any condition, on anything that you can think of.” And, on Tuesday, McConnell announced that Sinema “informed me directly last night that under no circumstances would she reverse course [on the filibuster].”

McConnell declared victory and agreed to move forward with a power-sharing agreement, but many political observers suggested he hadn’t gained anything at all because Sinema and Manchin had effectively repeated what they’d said in the past.

It’s fair to say that McConnell accomplished two things by raising the issue of the filibuster at the outset of the 117th Congress. First, he reshaped the debate in a way that was disadvantageous to Democrats who want to kill the filibuster. The progressive playbook has been obvious to Republicans for months. In his July 30 eulogy for late Democratic congressman and civil-rights leader John Lewis, Barack Obama endorsed eliminating the filibuster in order to pass a voting-rights bill. “And if all this 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.

Sure enough, Democrats decided to introduce a bill to federalize elections as their first bill. “Senate Democrats have said they will join House Democrats in pushing the democracy-expanding ‘For The People Act’ as their first bill,” Ezra Klein wrote on January 21. “But you can’t use budget reconciliation for that. So do Democrats give up on democracy or listen to Obama and give up on the filibuster?”

The play was obvious: Use the voting-rights bill to portray any supporter of the filibuster as both racist and an enemy of democracy. While Democrats wanted a debate focused on that particular bill in order to kill the filibuster, McConnell wanted a debate about the filibuster writ large. He told his Republican colleagues in an email on January 18 that they needed to address the filibuster “head on before the passions of one particular issue or another arise.” By raising the issue now, McConnell got the debate he wanted.

Second, he extracted fresh commitments from Democrats Manchin and Sinema to keep the filibuster. It’s true that Manchin and Sinema have made firm commitments to do so before — Sinema in 2019 and Manchin following the November elections. But politicians change their minds all the time when the circumstances suit them, especially on matters of process. The flip-floppers usually like to find a way to claim that something had changed or that new information had come to light, so a fresh commitment from Sinema in January 2021 — after Democrats had taken power and after they’d made their legislative priorities clear — was indeed worth something. Such reaffirmations make it harder for Sinema and Manchin to flip-flop over the next two years.

Of course, Manchin and Sinema could still change their minds for one reason or another. But even if the two moderate Democrats wanted to kill the filibuster for a particularly popular bill, eliminating the filibuster would enable Democrats to pass many other unpopular things. For example, Manchin says he opposes taxpayer funding for abortion and would vote against a bill getting rid of the Hyde amendment. But if he kills the filibuster, it’s possible that Manchin’s 49 Democratic colleagues could — with the support of Maine Republican Susan Collins and Vice President Harris — enact unlimited direct taxpayer funding of Medicaid abortions.

Other threats to the filibuster still loom.

Manchin and Sinema could effectively nuke the filibuster — while claiming they weren’t nuking it — if they expand what can be passed by a simple majority under budget-reconciliation rules. The 2022 elections are also a threat. While Obama and Trump lost the House two years into their presidencies, it’s entirely possible that Democrats could keep the House in 2022 and pick up Senate seats amid a GOP civil war. Incumbent GOP senators are retiring in Pennsylvania and Ohio, and the GOP will also have to defend seats in Iowa and Wisconsin in 2022.

If Democrats gain just two Senate seats in 2022, they can kill the filibuster without the support of Manchin and Sinema.