After the demise of Roe v. Wade late last month, at a Madrid press conference, President Joe Biden announced his support for suspending the Senate’s filibuster rule to pass legislation codifying national abortion rights. Biden stopped short of fully abolishing the filibuster, but it’s the second time this year he has supported “an exception” to the filibuster. He explained, “It's like voting rights.”
However back in January, when the Senate held a vote on suspending the filibuster to pass voting rights legislation, despite Biden’s backing, Democrats couldn’t win the support of their caucus members Sens. Joe Manchin and Kyrsten Sinema. Both have been steadfast supporters of the filibuster rule, arguing it fosters bipartisanship, and in turn, national unity.
Biden’s support for an abortion exception in June helps illuminate why the two couldn’t be persuaded to make a voting rights exception in January. If the Senate makes one exception, it won’t be able to stop. (In 2013, Democrats used the so-called “nuclear option” loophole to let a simple majority scrap the filibuster for executive branch and lower court appointments. In 2017, Republicans did the same for Supreme Court appointments. But those dramatic procedural moves have not snowballed into a repeal of the legislative filibuster. At least not yet.)
Biden and many other Democrats, feeling intense heat from voting advocates fearful of disenfranchisement, had argued that something as constitutionally sacrosanct as the right to vote should not be subject to a filibuster from a Senate minority. They could not then argue that the right to vote merits an exception but reproductive freedom, following the loss of Roe, does not. The Democrats’ progressive base would erupt.
Since Manchin and Sinema remain a roadblock, Democrats won’t be making any exceptions this year. But they’ve showed their hand. The president, the vast majority of the Senate Democratic Caucus, and many Democratic Senate candidates are now on record supporting filibuster exceptions or its outright abolition – a distinction without much difference. If Democrats were somehow to keep the House and sufficiently expand their ranks in the Senate in the 2022 midterms, they will be obligated to follow through on their stated position.
However, a more likely scenario is that Democrats won’t be able to keep control of both chambers of Congress. Recent polling in battleground states Pennsylvania, Georgia, and Wisconsin suggests Democrats have a decent shot of holding the Senate. But with Democrats’ current House margin so narrow and Biden’s approval ratings so low, keeping the lower chamber is much harder to envision. The forecasters at FiveThirtyEight give Democrats a 46% chance of keeping the Senate but only a 13% chance of keeping the House.
If the Democrats lose the Senate, then they can no longer change the filibuster rules by themselves. If they keep the Senate but lose the House, Democrats will have no pressing reason to junk the filibuster; any party-line Senate bill will just get squelched in the House.
And yet, the widespread Democratic criticism of the filibuster will still have put the controversial Senate rule in a precarious position. Since Republicans can reasonably conclude that Democrats are primed to abolish the legislative filibuster at their next opportunity, the next time they get full control of the White House and Congress, they would face pressure from their conservative base voters to do it themselves. After all, Democrats will eventually do it, so why not go first and get your wish list passed?
Many Democrats already believe Republicans would target the legislative filibuster, which is why they wanted to go first this year. Democrats have only been foiled because two of their own broke ranks.
And, of course, if Republicans captured control of the White House and Congress, Democrats would rediscover their affection for the filibuster. They ably wielded filibuster power during the George W. Bush and Donald Trump presidencies, constraining the Republicans’ legislative output. And the filibuster would come in handy when resisting any future attempt at a national abortion ban.
But at this point, the only way Democrats will have filibuster power is if enough Senate Republicans let them keep it.
In 2018, then-Senate Majority Leader Mitch McConnell rebuffed President Trump’s demands for filibuster abolition, and this year insisted he would “never support smashing the filibuster.” Whether or not you take McConnell at his word, what's certainly true is McConnell can’t live forever. Whoever succeeds him would probably not make such a definitive pledge. If a future Republican Senate majority leader ever moved to junk the filibuster, the only way it could still survive is if a group of rogue Republicans emulated Manchin and Sinema and denied their leadership a simple majority.
One can understand why Democrats embarked on a filibuster abolition push early in Biden’s presidency. The window for bold legislating is typically narrow, as is the Democratic congressional majority. Speedy removal of the filibuster was needed if Democrats were to enact a sweeping agenda and campaign for reelection on the basis of that agenda.
But that window is closed. Democrats are short of 50 Senate votes for their most ambitious policy items. In February, they were short of 50 for their version of a national law enshrining the right to an abortion. Now by adding to their list of filibuster exceptions, all Biden and his like-minded Democrats have done is weaken the political standing of the filibuster, ironically, when their hold on the White House and Congress is weakening as well.
Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at email@example.com or follow him on Twitter @BillScher.