WASHINGTON — The Senate has been mulling the future of the filibuster for months, but votes Thursday could finally push that discussion from the theoretical to the practical, and proponents of nuking the 60-vote threshold believe it could fuel their cause.
Two major pieces of legislation before the Senate could be blocked this week by Republicans, the first time the filibuster has been invoked since Democrats took control of the Senate in January.
“My colleagues have a theory that filibuster promotes bipartisanship,” Sen. Chris Murphy, D-Conn., told NBC News. “You have to test this theory. I hope they are right.”
It raises the political and practical stakes for Senate Democrats' internal debate over how to treat the filibuster and their calculations about whether Republicans, who are in the minority, are willing to reach across the aisle.
And it could have repercussions for President Joe Biden's agenda and whether he spends his term signing legislation or spinning his wheels in Congress.
The Senate has been working on the bipartisan U.S. Innovation and Competition Act, a bill to address competitiveness with China, for the past two weeks. But some late-stage opposition by Senate Minority Leader Mitch McConnell, R-Ky., could rally Republicans to block the bill.
The Senate is scheduled to hold a series of votes Thursday on the China bill. Depending on the outcome, it could vote afterward on the Jan. 6 commission.
The China legislation impasse comes as Democrats are also being stymied by Republicans on the creation of an independent commission to investigate the Jan. 6 attack on the Capitol, potentially setting up the first two filibusters of the current session.
The confluence of the two issues comes at a critical time, when bipartisan negotiations are ongoing on a variety of issues, including infrastructure, policing reform, gun control and immigration. Senators and aides say the action on the Senate floor this week could determine if bipartisanship on those issues is possible.
“What they’re going to do and how cooperative they’ll be impacts the willingness to cooperate on the next thing,” Sen. Tim Kaine, D-Va., said.
The China competitiveness bill has been the first recent attempt at legislating using regular order. The base of the legislation, authored by Senate Democratic Leader Chuck Schumer and Indiana Republican Sen. Todd Young, has allowed for a relatively open process to amend the bill and seemed to be on a glide path toward passage. The Senate has so far voted on 14 Republican amendments and four Democratic amendments.
Young was just one of several Republicans who applauded the process run by Schumer.
“Look, we’ve had bipartisan amendments offered throughout the committee process, bipartisan amendments offered last week, bipartisan amendments offered this week,” he said. “I can’t recall when this has happened since I’ve been in the United States Senate.”
Young was elected to the Senate in 2016 when Republicans complained privately and Democrats complained publicly about the lack of legislating in the Senate under McConnell.
McConnell has been lukewarm on the China bill. He hasn’t thrown his support behind it and has been telling his members not to be in a hurry to pass it, Sen. Kevin Cramer, R-N.D., said in an interview.
Late Wednesday, after meeting for their weekly closed-door lunch, Senate Republicans emerged with several indicating they were unlikely to vote to allow the bill to head to a final vote.
“I told Senator Schumer we need more amendments,” Sen. John Cornyn, R-Texas, said. He insisted that Republicans don’t want to kill the bill but that they aren’t ready to vote for it.
‘My favorite philosopher, Mick Jagger’
Democrats see the China bill as the test of bipartisan cooperation.
They argue that if the China competitiveness bill, which has been a bipartisan priority, is unable to blocked, then the prospect of other high-profile negotiations are slim, especially on infrastructure.
“If the minority party can put this much work into this legislation and then blow it up at the last minute because of a couple of issues over process, that would be an indictment of the state of the current Senate,” Murphy said.
The stalemate, which could be broken before the Senate leaves town for the holiday weekend and for a weeklong recess, is taking place in the shadow of the partisanship behind the creation of the commission to investigate the events leading up to Jan. 6, a vote that could further break down Senate cooperation.
“I would think that we could all — you would like to think reasonably under common sense that we could all agree on that,” Sen. Joe Manchin, D-W.V., said.
But it’s unlikely that Republicans will agree.
McConnell on Tuesday called the formation of the commission “a purely political exercise.”
Only three — Sens. Mitt Romney of Utah, Lisa Murkowski of Alaska and Susan Collins of Maine — have said they will vote to advance the legislation and break a filibuster.
Proponents of abolishing the filibuster say the commission vote proves the Senate isn’t functioning, a message likely to be amplified if the China bill flounders.
Manchin, along with Sen. Kyrsten Sinema, D-Ariz., are opposed to gutting the filibuster. Aware of the pressure coming from their party on the issue, the duo released a statement this week urging Republicans to come to the table and vote for the commission.
“And to quote my favorite philosopher, Mick Jagger, you can’t always get what you want. But if you try some time, you might just find you get what you need,” Sen. Angus King, I-Maine, said in an interview. “This is the way this process is supposed to work.”
‘The fate of our democracy’
Sen. Sheldon Whitehouse, D-R.I., said he’s already convinced that Republicans aren’t operating in good faith, but that it’s not clear “when that same switch flips in the minds of my colleagues.”
“I would hope and expect that at some point, when confronted with enough behavior, that even the hardest heart will soften,” he said.
And the coming filibusters will bring about what progressive activists like Adam Jentleson, a former Senate aide and author of a book criticizing the filibuster, call “Act 2” of the debate. It will no longer be theoretical — senators will be able to see what laws are being stymied by the super-majority threshold.
“It certainly forces the issue,” Jentleson said. “We don’t have much time to chase fantasies of getting to 60 on things like voting rights. Seeing Republicans filibuster this bill should speed up Democrats’ realization that the fate of our democracy rests on whether they end the filibuster.”
“If we can’t even get a bipartisan commission to investigate an insurrection, then the filibuster has to go,” Sen. Brian Schatz, D-Hawaii, said.
Sen. Elizabeth Warren, D-Mass., said failure to approve an independent commission to investigate the “insurrection” would illustrate to Democrats that Republicans aren’t interested in protecting the country.
“If the Jan. 6 commission can’t make it through the Senate, it’s further evidence of how the filibuster under Mitch McConnell is strangling our democracy,” she said.