Despite their willingness to exempt a bill from the 60-vote threshold in the past, Democrats are now using the filibuster to their advantage. As of today, they have 10 times denied 60 votes to the House of Representatives’ stopgap funding bill that would reopen the government. And they’re saying they’re not done yet.
“I feel only pressure to fight,” Sen. Chris Murphy of Connecticut told reporters this week. “People want us to fight for this democracy.”
The 2022 measure would not have eliminated the filibuster; instead, it would have allowed for a one-time exemption for the particular legislation Democrats wanted to pass. But more than 20 senators from the party at the time wanted to do away with it wholesale. Now, those who are still in office are using the very procedural tool they wanted to kill for leverage in the shutdown fight to get Republicans to include extraneous health care provisions in a bill to reopen the government. None who spoke to TMD saw any inconsistency.
“You deal with the situation as it is, and, therefore, right now, the Republicans are saying that they want our votes, but they don’t want to give us anything for the votes,” Sen. Mazie Hirono of Hawaii told TMD. “So as long as the filibuster is in place, which it is, we’ll deal with it. I don’t see any inconsistency in using the situation as we find it and [doing] the best we can to get our points across.”
“If the Republicans don’t want to make changes, then they won’t, and we have to follow the current rules. That’s just how it is,” Sen. Elizabeth Warren of Massachusetts told TMD.
The filibuster stems from senators’ privilege to speak as long as they want. From the early republic up until the early 19th century, there was no such thing as a formal rule to end debate on a bill. The threat of senators drawing out debate on an issue in perpetuity incentivized those in the chamber to persuade opponents or make deals with them.
“It kind of created this atmosphere of constant accommodation and, I think, the sense that senators sort of owed each other quite a bit of respect and deference as a matter of course,” Philip Wallach, a senior fellow at the American Enterprise Institute who studies Congress, told TMD.
Things changed in 1917 when “a little group of willful men, representing no opinion but their own,” in the words of President Woodrow Wilson, filibustered his proposal to arm American merchant ships to protect them from German U-boats, shortly before the United States entered World War I. Thus spawned the cloture rule, which allowed the Senate to end debate on an issue with a two-thirds majority.
Still, invoking cloture was seen as a last resort until the middle of the 20th century, when senators representing Southern states endlessly debated civil rights bills—Sen. Strom Thurmond famously gave a speech that lasted more than 24 hours—holding up other business that the Senate wanted to consider. That controversy later inspired Senate leaders to change the rules further, lowering the cloture threshold to 60 votes. Meanwhile, the minority party has increasingly used the filibuster to block bills it opposes, often to the chagrin of the party in power.
Republicans are feeling that pain in this spending fight, and a small number of populist GOP members of Congress have suggested circumventing the filibuster to pass the House’s funding bill. “My point of view would be this: We have almost all Republicans on board. Maybe it’s time to think about the filibuster,” Sen. Bernie Moreno of Ohio said on Fox News last week. “We just say, ‘Look, the Democrats would have done it. Let’s just vote with Republicans.’”
Rep. Marjorie Taylor Greene of Georgia made a similar suggestion.
Some on the left have also suggested that Republicans either end the filibuster or make a carve-out to it for this purpose. Democratic Rep. Ro Khanna of California, an opponent of the filibuster, has called for an exception to it for bills that stop government shutdowns (given than such carve-outs already exist for the confirmation of judicial and presidential nominees). Weakening the filibuster would undoubtedly help Democrats the next time they have the trifecta, so should we see that as a part of a strategy to undermine the procedure?
“I’ve been against the filibuster, and I think what we need to be doing is carving out more exceptions to it,” Khanna told TMD in response to that question. “But to start to say that we should not have a filibuster to keep the U.S. government open, it seems pretty reasonable.”
But Majority Leader John Thune quickly put the kibosh on that idea last week when he was asked about it at a presser. “There’s always a lot of swirl out there, as you know, from social media, et cetera, but no, I have not had that conversation,” he said.
One has to wonder whether he would be so averse to circumventing the filibuster if Democrats had been successful in doing so in 2022. Once one side makes a carve-out to the rules, the other side often capitalizes on it. When then-Senate Majority Leader Harry Reid lowered the cloture threshold to 50 votes for presidential appointments and lower court nominees in 2013, Sen. Mitch McConnell, then the minority leader, warned his opponents that they “may regret it a lot sooner than you think.” After Republicans won a governing trifecta in 2016, they lowered the cloture threshold for Supreme Court justices and confirmed three of them.
It is not difficult to imagine a similar scenario playing out with the spending bill or other legislation during this Republican trifecta had Democrats gotten their carve-out three years ago. One could argue that it is fortunate for Democrats that they failed at the time, but Sen. Richard Blumenthal of Connecticut, another proponent of eliminating the filibuster, was not ready to entertain that conclusion.
“I make a point of looking forward,” he told TMD. “And I haven’t been looking in hindsight.”
