Senate Democrats are set to rekindle their love for the very procedural tool they spent years trying to weaken: the filibuster.
Soon to be in the minority, Democrats are ready to use whatever tactics are at their disposal to put up roadblocks for Republicans and President-elect Donald Trump — including the 60-vote threshold many have long sought to abolish.
“I’d be lying if I said we’d be in a better position without the filibuster,” Sen. Richard Blumenthal (D-CT) said. “We have a responsibility to stop autocratic and long-headed abuse of power or policy, and we’ll use whatever tools we have available. We’re not going to fight this battle with one hand tied behind our back.”
Senate Majority Whip Dick Durbin (D-IL) sees the filibuster as “part of the calculation” to how Democrats will spearhead resistance next Congress in a chamber with a 53-47 GOP majority.
“We had to live with it when we were in the majority,” he said.
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Senate Democrats under President Joe Biden sought to transform the legislative filibuster, with wide-ranging proposals from eliminating it altogether to creating policy carveouts for issues such as federal voting rights, abortion access, and gun control. But Sens. Joe Manchin (I-WV) and Kyrsten Sinema (I-AZ), ardent defenders of the legislative hurdle, stood in their way.
With the duo’s retirements, Democrats saw an opportunity next year to finally alter the modern 60-vote rule that has been in place for most legislation since 1975. But then Republicans flipped four seats in the elections, along with the majority.
Sinema, tight-lipped with the press, offered a curt response to the Democrats now defending the filibuster.
“You don’t say,” she tweeted.
Democrats acknowledge the hypocrisy in their position. But they are staring down a GOP trifecta with a Republican House of Representatives, Senate, and White House.
“I’m going to try not to make a mess of my position on this one,” said Sen. Brian Schatz (D-HI), who’s long advocated the legislative filibuster’s elimination.
“You play with the rules that exist,” Sen. Chris Murphy (D-CT) said.
Murphy added that he is open to changes but not to “obliterate” the filibuster, a tool he described in 2021 as “downright dangerous,” a “slap in the face to majoritarianism,” and an “argument that essentially prioritizes consistency over democracy.”
The question on Democrats’ minds is whether Republicans will stay true to their word not to modify the filibuster, something both parties have gradually weakened over the last century. Proponents of the rule say it forces bipartisanship. Democratic opponents argue it is a racist relic from its use in the Civil Rights era.
Incoming Senate GOP Leader John Thune (R-SD) vowed that the filibuster will be “safe under Republican control,” even if it may stand in Trump’s way.
“I find it ironic that a party that has spent a fair amount of time this election cycle talking about the importance of preserving our democracy seem intent on embracing the thoroughly undemocratic notion that only one party should be making decisions in this country,” Thune said.
Some Democrats give their GOP colleagues the benefit of the doubt that it will stay intact, in part, because many of the economic policies from Trump and Republicans can be achieved under an annual budget process known as reconciliation that only needs a simple majority.
But other Democrats are not so sure. Trump’s influence is a wild card, particularly the more his agenda gets thwarted by filibuster-wielding Democrats. Senate Republicans, for their part, rebuffed demands in his first term to nuke the filibuster.
“The one emergency brake would be the filibuster,” Sen. John Fetterman (D-PA) said. “I’m not going to clutch my pearls if they [change] that, because, hey, we’ve talked about that, too. I would be surprised if Trump doesn’t immediately call for that.”
Murphy considers Thune “an honorable guy” but added that he is “always worried that Republicans were going to change the rules if we didn’t.”
Modifying the filibuster takes only a simple majority, making it an easy target in the past for senators to erode its power. Debate could be cut off under original Senate rules with a simple majority until 1806. In 1917, it was changed to a two-thirds majority, or 67 votes. Then in 1975, it was lowered to its current three-fifths majority, or 60 votes.
Since then, Republicans and Democrats have played a tit-for-tat in creating filibuster carveouts for presidential nominations. Democrats lowered it to a simple majority in 2013 to confirm Cabinet picks and judges, excluding Supreme Court nominees. In 2017, Republicans returned the favor by lowering the threshold for Supreme Court confirmations.
There are other legislative exceptions the filibuster does not apply to, including reconciliation, trade agreements, and the closure of military bases.
“Democrats continue to talk out of both sides of their mouth, and we’re seeing it again right now,” said Senate Republican Conference Chairman John Barrasso (R-WY), the incoming GOP whip. “They all campaigned to eliminate the filibuster, and now they’re scared to death of it.”
Many Democratic critics advocate a return to a talking filibuster. Currently, the threat of a senator filibustering a piece of legislation has been enough to derail its consideration. But a talking filibuster would mean opponents would have to continuously hold the floor and thus halt all other chamber business — a strategy that proponents say would force compromise.
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Senate Majority Leader Chuck Schumer (D-NY) promised voters this summer that Democrats would remove the filibuster to advance a progressive agenda if they rewarded them with the majority. Since the elections, he has pleaded with the incoming Republican majority to prioritize bipartisanship.
“I offer a word of caution in good faith: Take care not to misread the will of the people, and do not abandon the need for bipartisanship,” Schumer said.