Killing the filibuster

‘Everything stays on the table’: 2020 Dems weigh killing the filibuster

White House contenders are debating whether to change Senate rules in order to enact their sweeping agenda.

By BURGESS EVERETT and MARIANNE LEVINE

Democrats have a lot of big ideas if they win back the White House and Congress in 2020. But it’s not clear they are willing to do a key thing needed to implement them: eliminating the filibuster.

Senate Democrats pursuing the White House are split on whether to even consider getting rid of the chamber’s longstanding supermajority requirement. The debate is heating up as the race for the presidential nomination begins and will largely determine whether the party can enact a “Green New Deal,” Medicare-for-All and other top priorities on the left.

“Everything stays on the table. You keep it all on the table. Don’t take anything off the table,” Sen. Elizabeth Warren (D-Mass.) said when asked about the fate of the filibuster. “That’s a clear answer. You’re not going to have a clearer answer than that.”

Countered Sen. Cory Booker (D-N.J.), another likely presidential contender: “We should not be doing anything to mess with the strength of the filibuster. It’s one of the distinguishing factors of this body. And I think it is good to have the power of the filibuster.”

Democrats hold 47 Senate seats now and have a realistic shot at winning the majority back in 2020, but absolutely no prospect of getting a filibuster-proof 60 seats anytime soon. There are other ways around the 60-vote threshold, but they come with their own drawbacks, leaving the “nuclear option” of unilaterally killing the filibuster as perhaps the only way to advance major progressive changes the next time Democrats have unified control of Washington.

The filibuster has been under constant erosion over the past decade. Yet the legislative filibuster is a third rail in the Senate: The bulk of each party doesn’t want to get rid of the minority’s ability to block legislation, reasoning that over time the filibuster has driven bipartisanship and staved off extreme policy shifts.

But with Democratic candidates beginning to tout a sweeping agenda, the debate is shifting — especially as progressive activists push 2020 candidates to do away with the maneuver.

Sen. Kirsten Gillibrand (D-N.Y.) spoke of the value of the filibuster in remarks to the liberal Pod Save America last week. However, in an interview on Thursday, she said it was an issue she’s still evaluating.

“It’s a very important question. I want to weigh all the pros and the cons over the next few weeks. I think it’s something that my colleagues will consider heavily,” said Gillibrand, who’s exploring a 2020 run. “Having just lived through being in the minority and how destructive the 51-vote threshold has been for Supreme Court justices, I just want to think long and hard about it.”

Sen. Bernie Sanders (I-Vt.), another potential White House contender, gave a nearly 30-minute speech on Thursday touting his plans to tax the wealthy. But he wasn’t quite ready to have a debate on how to pass it in the Senate with 41 senators able to block it: “Very good discussion. But not for today, OK? First of all we’ve got to take back [power]. You’re too far ahead."

Changing the legislative filibuster would be enormously difficult. Many senators in both parties oppose the move, and it would almost certainly have to be done on a party-line basis. It’s also generally considered bad practice to talk about changing the rules in the majority while you’re in the minority: Democrats didn’t even discuss the filibuster at their annual retreat this week, said Sen. Tammy Baldwin (D-Wis.).

Yet when Senate rules changes are deemed necessary, they can come quickly. Frustrated with the GOP blockade of some of President Barack Obama’s appointees in 2013 and with control of 55 seats, Democrats scuttled the 60-vote threshold on most nominees. Three of their members voted against it, though just one remains in the Senate.

Opposition to killing the legislative filibuster exists across the Senate Democratic spectrum, suggesting any future president would have a ton of work on her or his hands to convince senators to change the fabric of the chamber..

Moderate Democrats like Doug Jones of Alabama and Joe Manchin of West Virginia said in interviews that they’re against it, as did Hawaii liberal Mazie Hirono.

“No, we'd turn into the House,” said Hirono, who added that it was important for the minority to have some say on legislation.

“I think we’ll look at the Senate process,” said Sen. Jeanne Shaheen (D-N.H.). “But I would be surprised if we’ll change the filibuster to eliminate it.”

Any rules change would have to be implemented by Senate Democratic Leader Chuck Schumer (D-N.Y.), who as minority leader has opposed such a move.

Yet Democrats admit their ambitions are likely to be limited by the filibuster even if they romp in 2020.

Previously, some Democrats endorsed more modest procedural reforms, like getting rid of the 60-vote threshold to open debate on legislation as well as requiring “talking filibusters” where senators would actually have to hold the floor to block a bill, which they currently don’t have to do.

Once Democrats lost the majority in 2014, the effort fizzled. But most senators believe there’s a slippery slope. After Harry Reid’s Democratic caucus killed the filibuster on most nominees in 2013, Mitch McConnell (R-Ky.) gutted it for Supreme Court appointments in 2017. Now he’s mulling a proposal to cut debate time on lower level nominees to limit the use of the filibuster’s delay tactics.

After that, the legislative filibuster is likely to be next on the chopping block, provided one party controls the White House, House and Senate and is ready to take advantage of it.

“I would be shocked if the filibuster sticks around for the entirety of my second term in the Senate,” said Sen. Chris Murphy (D-Conn.), who was re-elected last year. “It is very hard to figure out how you do a major health care reform without changing the rules.”

Murphy said he’s open to changes to the rules but said his party shouldn’t get ahead of themselves: “We’ll win first and worry about how to get stuff done second.”

In fact, that’s not what was happening in the fall of 2016 when it appeared that Hillary Clinton’s win was inevitable along with GOP losses in the Senate and House.

“Everybody expected her to win, you should have seen all the people calling and saying: ‘She’s going to be blocked if you don’t change the rule,’” Sen. Tom Udall (D-N.M.). recalled. But he said it was a legitimate debate: “How are you going to do like a big climate change bill? It’s very hard to do big broad legislation under the filibuster.”

President Donald Trump advocated the abolition of the filibuster as recently as December to get his border wall, to consistent opposition from Senate Republicans. Now that the GOP has lost the House, that drumbeat has quieted.

Many Republicans take the view that the filibuster is better for conservatives in the long run, with the GOP eager to block new regulations on guns, the environment and more. But Sen. Steve Daines (R-Mont.) said it’s the “right thing to do” no matter who is in control.

Several Democrats, from Udall to Warren, said that Republicans effectively killed the filibuster in the last Congress by deploying budget reconciliation, a blunt tool that allows passage of legislation by a simple majority in the Senate. That technique has its own limitations. Full repeal and replacement of Obamacare proved impossible under the procedure's restrictions and the legislative push ultimately failed. Meanwhile, many of the GOP’s prized tax cuts expire in the coming years under the budget rules.

Warren said that even without a major change to the Senate rules, the GOP has given Democrats a road map if they win power and decide not to gut the filibuster.

“On proposals like my wealth tax, the Republicans have proven that you can rewrite all the tax laws with a 51-vote majority,” Warren said. “So: give us a majority.”