Why Democrats Need to Be Careful on the Filibuster

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As President Joe Biden delivered a major speech in Atlanta on Tuesday designed to prod the Senate to change its rules in order to pass a pair of voting-rights bills, Senate Minority Leader Mitch McConnell’s orbit at the Capitol warned Democrats: be careful what you wish for.

The dueling messages set up the political stage for this election year, when the entire House and 34 seats in the Senate are up for grabs. Biden largely spent the first eleven months of his return to the White House chasing comity and compromise, especially from the Senate where he spent 36 years. While activists urged him even during the transition period of November and December of 2020 to get serious about blocking state bills that make it harder to vote, to pack the U.S. Supreme Court to counter a 6-3 Republican majority and to scrap the filibuster, which effectively allows a lone Senator to derail an agenda, he resisted. Biden instead believed that common ground was still possible in Washington.

It seems that somewhere between the cranberry sauce of Thanksgiving and the sugar cookies at Christmas, Biden got a clearer picture of what Washington is really like right now. After Sen. Joe Manchin of West Virginia single-handedly spiked Democrats’ social spending bill, the White House released a detailed and unbridled blow-by-blow indictment against a fellow Democrat. Where Biden once ignored comments from his predecessor, he openly challenged Donald Trump’s dangerous rhetoric while visiting the Capitol on the anniversary of the Jan. 6 attack. And on Tuesday, he indicated that he was done trying to privately coax lawmakers to agree to changes. “I’ve been having these quiet conversations with members of Congress for the last two months. I’m tired of being quiet,” an agitated Biden said.

To prevent a wasted year before history suggests they’ll lose control of the House in the midterms, Democrats—with Biden’s blessing—plan to scrap or at least limit the use of the filibuster. Senate Majority Leader Chuck Schumer has promised a first vote on election bills by Monday’s Martin Luther King Jr. Day. A vote on the rules change could come as soon as Wednesday, although it appears heading toward a defeat; Manchin has said he won’t move the 60-vote threshold without Republican support—something that is not in the offing. Sen. Kyrsten Sinema of Arizona similarly has opposed changing the rules.

Beyond that pair of moderates, there remains something of an uneasiness about surrendering the ability to gum up the Senate should Democrats a year from now find themselves in the minority. After all, the Senate is currently split 50-50, with Vice President Kamala Harris able to break the tie. In perhaps the most telling clue about the conflicted views about tweaking the filibuster, ardent Bidenista Chris Coons, who serves in Biden’s former Senate seat from Delaware and is something of a de facto Biden liaison to Congress, is apparently not eager to back the changes. Others are quietly skittish.

But to Biden’s team, inaction on voting rights is not an option. Since the 2020 election, 19 states have passed 34 election bills that tighten access to ballots. Dozens of others are in the wings in GOP legislatures, where Trump’s fact-free assertion that voting fraud cost him a second term is prompting a crackdown on voting rights. It’s a major stick in the craw of civil rights activists who see these moves as aggression against voters of color.

Removing the filibuster, however, may not even be worth the crass political win. No one knows the arcane Senate rules better than McConnell and he’s already signaling how he could place a whole raft of bills on the legislative calendar under the altered reality that moves the goalposts from 60 votes to 51. And, with typical shrewdness, McConnell’s teed-up agenda could force vulnerable Democrats to take tough votes, even if the items have no hope of passing the House.

McConnell’s leadership team knows some of the more than a dozen pieces of legitimate legislation would be tough to argue against. For instance, frustrated parents are likely to prove a sympathetic audience for linking in-person learning with some $164 billion in unspent COVID-19 relief money. McConnell also is eyeing measures to ban vaccine mandates, block federal dollars to so-called “sanctuary cities” and end an IRS requirement that banks share customers’ data with the tax collectors.

For lawmakers facing tricky re-elections this year, the traps are as obvious as they are plentiful. McConnell is a master of forcing rivals into politically untenable postures. Lowering the threshold to 51 votes opens a whole host of pitfalls for Democrats—so much so that some staffers on the Hill are cautioning that they probably don’t fully understand what comes after voting rights. Many are still stung by Democrats’ 2013 decision to invoke the nuclear option that moved almost all confirmations to simple majority votes—and Republicans’ 2017 sequel that added the Supreme Court to gigs that dodged a 60-vote barrier and made possible Trump’s three successful nominations.

At the moment, Biden seems only focused on delivering voting-rights protections instead of worrying about what comes next. The voting-rights measures are wildly popular across partisan lines. They could help Biden repair rifts with parts of his electoral coalition that say he has failed to make voting rights a priority, with some openly boycotting his pilgrimage to Atlanta. And, from a cynical perspective, Democrats need every single potential supporter to have easy access to the polls ahead of November if they stand a chance at avoiding a blow-out.

Democrats still face a difficult path to getting the two voting-rights bills to Biden’s desk. If they fail to limit the filibuster in the coming days, that may set them back with Americans who say voting rights need to be the most important issue. But the failure could also spare them the McConnell meddling on the legislative calendar. Still, that would be a thin consolation for voters whose right to vote is denied—and exceptionally bad for democracy at a time when it is on the line.

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