White House

Joe Biden Was Right the First Time on the Filibuster

President Biden speaks at the White House in Washington, D.C., February 5, 2021. (Kevin Lamarque/Reuters)

Americans who have been hoping that the supposedly “moderate” President Biden will stand up to his party on something concrete will have to wait yet a little longer. Having reaffirmed as recently as yesterday afternoon that he still favored the Senate filibuster, the president told George Stephanopoulos last night that he was now open to changing his mind. At the very least, Biden suggested, the filibuster should be amended so that senators have to keep talking in order to sustain it. Why? Because “Democracy is having a hard time functioning.”

 

Is it, though? And, if so, when did this start? All told, there is an unavoidable whiff of “for me, but not for thee” about the Democratic Party’s approach to the Senate’s rules. Biden served in the upper chamber for three and a half decades, during which time he participated enthusiastically in an untold number of filibusters. Looking back on his career in 2005, Biden suggested that one of the most important lessons he had learned in 1975 was that, even when considering minor rules changes (in that case reducing the cloture threshold from 67 to 60), any “rules change by a simple majority vote” was “misguided.” “The Senate,” Biden said, “ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment.” Having left the vice president’s office in 2017, Biden persisted in this belief, looking on contentedly as his party used the filibuster in order to stymie the lion’s share of the Trump agenda and stating during last year’s presidential election that “ending the filibuster is a very dangerous move.” That only now, having become president, Biden believes that a simple majority should change the rules is curious, to say the least.

 

Alas, Biden is not alone in his overnight conversion. Unlike Mitch McConnell and his Republican colleagues, who resisted intense anti-filibuster pressure from President Trump, the Democratic Party has folded, almost to a man, within seven weeks. In 2017, 31 of the 48 senators who caucus with the Democrats — including figures such as Kamala Harris, Ed Markey, Mazie Hirono, and Cory Booker — signed a bipartisan letter affirming their opposition to “any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate.” Introducing the letter, which ultimately received more than 60 signatures, its co-author Senator Collins cast it as a defense of “an important tradition of the Senate that recognizes the rights of the minority.” Perhaps she should have appended a few extra words: “even if that minority is Republican.”

 

Principle aside, the timing of Biden’s change is strategically dubious. The Senate is currently split 50-50 been the parties, with the vice president breaking any ties. The House is as closely divided as it has been in decades. Already, Democrats are having trouble getting to 50 votes — a problem that is only likely to grow as the honeymoon phase wanes. It would take just a single death or retirement within the Democratic caucus to render the move against the filibuster either perilous or moot.

 

And it is the Democratic Party, not the Republican Party, that has most recently benefited from the safeguards accorded to the minority. In 2017, despite having an outright Senate majority and a long list of priorities, Mitch McConnell instinctively understood that the pendulum can swing fast and that the best legislative rules take stock of that fact. Is Chuck Schumer unable to resist as did McConnell?

 

Obviously, passions in our politics are particularly high right now. It was, of course, precisely for moments such as these that our patchwork quilt of checks and balances was contrived. At such times, presidents should reflect their position as the only nationally elected player in the system and remind the country of its longer-term commitments. Joe Biden once enjoyed playing that role in the Senate, admonishing would-be reformers of the filibuster in stringent terms:

 

I’ve been in the Senate for a long time, and there are plenty of times I would have loved to change this rule or that rule to pass a bill or to confirm a nominee I felt strongly about. But I didn’t, and it was understood that the option of doing so just wasn’t on the table. You fought political battles; you fought hard; but you fought them within the strictures and requirements of the Senate rules. Despite the short-term pain, that understanding has served both parties well, and provided long-term gain. Adopting the “nuclear option” would change this fundamental understanding and unbroken practice of what the Senate is all about.

 

Now, when his influence is as large as it is ever going to be, Biden looks increasingly willing to join the crowd seeking to curtail or end the filibuster. There are many words for such an approach, but leadership is not among them.

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