Will Democrats pull the plug on the filibuster?

By J.T. Young 
Real Clear Wire

The Senate filibuster will be the canary in Democrats’ congressional coal mine. It will show how far Democrats are willing to go in using their new majority to pursue their agenda – and just how far they intend that agenda to go.

Following November’s blue wave, Democrats will have their largest congressional majorities in years. In the House, they will be able to pass anything they please. But in the Senate, things will be different. There, even with potentially 58 votes, Democrats’ legislation can be derailed by a filibuster.

The filibuster is a Senate institution, but it is neither a provision in the Constitution nor an original one in the Senate. Apparently, it was created by accident in 1806 – a reactive act of omission, not a proactive act of commission – in a rulebook change suggested by Vice President Aaron Burr.

Over its long history it has evolved and been relaxed by both parties: A two-thirds vote is no longer needed to end it, and it doesn’t apply to presidential nominations or Supreme Court appointments. Still, its current 60-vote threshold is formidable in today’s highly partisan atmosphere. 

Democrats have made plain their disdain for the filibuster for some time – even as it has served their purposes, as in recently blocking Republicans’ SAVE Act voter reforms. Incoming Senate Majority Leader Chuck Schumer has spoken in the past about changing it. 

The last time Democrats held a Senate majority, only its narrowness and the refusal of Sens. Joe Manchin and Kyrsten Sinema to abolish the filibuster preserved it. The question now: Will any of Democrats’ new senators, who have no institutional memory of the filibuster or experience in the minority, fill those moderate shoes?

How can a seemingly foregone conclusion facing so large a majority be Democrats’ canary in the coal mine? Because there is no real reason to abandon it in this Congress.  

Unlike the filibuster, which is just a Senate rule, the veto is a constitutional check on Congress’ legislating ability. It therefore cannot be overturned by a simple majority vote in Congress. President Trump can veto any legislation that Democrats are able to pass. Even in the aftermath of their losses, Republicans still hold more than enough seats to prevent Democrats reaching the constitutionally required two-thirds votes needed to override his vetoes.   

For Democrats, overturning the filibuster now would merely be a signal of future intent. It would mean that Democrats are cavalierly willing to demonstrate their desire to fundamentally change how America’s government functions. 

It would also mean that the Democratic base is demanding what amounts to a symbolic move without substantive meaning – one that imperils Democrats themselves when another wave sweeps in from the opposite direction.   

In short: Why abolish the filibuster over the next two years, before you can even make meaningful use of its removal and simultaneously drop the façade of moderation? And moderation has been the pose that Democrats have struck, even in cases of their most extreme candidates and positions. 

Expect Democrats to remain quiet about the filibuster for now. To tip their hand to the change before they have even been sworn in as the majority would mean inviting Republicans to preemptively abolish the filibuster and pass legislation in their remaining lame duck weeks before Jan. 3.    

But expect the issue to come up some time in the next Congress, likely right after Republicans have first used it to block some Democratic legislation. 

Nonetheless, the issue is salient now. It will only become more so as soon as Democrats are sworn into their new Senate majority. And know too: It is surely coming. 

There will be many other litmus tests for Democrats in the next Congress. One is how they will treat Rep. Haley Stevens, who backed Republican Mike Rogers over Democrat Abdul El-Sayed in the Michigan Senate race in the last weeks of the current Congress. Another is how they will treat Sen. John Fetterman, about whom they have seethed because of his outbursts over their opposition to Israel’s right to self-defense. How aggressive they will be on impeachments is a third. 

Yet none of these litmus tests measure up to Democrats’ treatment of the Senate filibuster. This canary has sung for 220 years. The question to Democrats is whether it will continue the song – and what it will signal to America if it stops singing.

J.T. Young is the author of the recent book, Unprecedented Assault: How Big Government Unleashed America’s Socialist Left from RealClear Publishing. Follow him on Substack.