In 1980, Senate Republicans won a majority for the first time in 26 years, breaking the Democrats’ hammerlock on the chamber. From that election cycle on, jockeying for control of the Senate has been a highly competitive affair, as it’s changed hands seven times since.
On the previous occasion the party limited the filibuster, it came back to haunt them.
So the virtual certainty that Senate Democrats will return to the minority at some point in the coming years should give them pause about ending the filibuster rule, which effectively requires 60 votes to pass legislation rather than a bare majority of 51 in the 100-member chamber.
After Senate Republicans on Tuesday blocked consideration of marquee voting rights legislation, Democrats are closer than ever to ending the filibuster. Sufficient support isn’t quite there yet, with Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona vocally opposed to the idea and more of their party colleagues privately harboring doubts.
But the rejection of the linchpin election reform bill is sure to energize a Democratic base that is already angry at GOP stymying of legislation and that will no doubt use this latest development to force the issue, which they view as essential to blunting Republican state-level attempts to restrict voting and to passing President Joe Biden’s agenda.
The eagerness of many Senate Democrats to abolish the filibuster reflects a case of epic legislative amnesia about the rule’s double-edged nature. It was only in 2017, when Republicans held the majority, that then-Senate Minority Leader Chuck Schumer of New York (now majority leader) summed up the feelings of many of his colleagues when he declared: "Without the 60-vote threshold for legislation, the Senate becomes a majoritarian institution like the House, much more subject to the winds of short-term electoral change. No senator would like to see that happen, so let's find a way to further protect the 60-vote rule for legislation."
And indeed, throughout President Donald Trump’s term, Democrats used the filibuster aggressively while in the minority. Senate Democrats in 2019 used it to block construction of Trump’s border wall. And in 2020, they stopped cold police reform legislation put forward by Republican Sen. Tim Scott of South Carolina, since they wanted to push through their own version amid racial justice protests across the country.
Senate Democrats only feel differently now because they hold the majority and are frustrated by being on the other side of the coin. They seem ready to prioritize gains today over losses tomorrow, but not only is this an extremely short-sighted strategy, it’s completely unwise given how brief the period of gains could last.
They now hold the Senate by the narrowest margin possible, with 50 seats for each party and Vice President Kamala Harris casting the tie-breaking vote. Their tenuous majority position should be a reminder to Democrats that they’ll be helpless to block legislation the next time Senate Republicans hold all the cards.
Senate Minority Leader Mitch McConnell has warned starkly about such a situation. When Republicans return to power, the Kentucky Republican said on the Senate floor last month that they could pass “all kinds of conservative policies with zero input from the other side,” including defunding Planned Parenthood, cutting off sanctuary cities, restricting abortion and passing a nationwide “right-to-work law,” which prevents a person from being compelled to join a union as a condition of their employment.
And while Republicans won’t have the chance to control the presidency and both chambers in Congress until after the 2024 elections, they could seize the Senate majority itself any day with the departure of a single Democratic senator from the chamber — which would put an end to Democrats passing any legislation without bipartisan support.
That happened inversely the last time the Senate split 50-50. After the 2000 elections, Republicans held the edge because Vice President Dick Cheney had the chamber’s tie-breaking vote. But that situation ended after a mere five months, when Republican Sen. Jim Jeffords of Vermont broke with the party over ideological differences and personal pique to become an independent who caucused with the Democrats, giving them a 51-49 edge.
Schumer is aware of the dangers of pushing recalcitrant lawmakers like Manchin and Sinema too far. With Manchin in particular, Schumer has told outside groups not to bully him but instead try to persuade him with arguments based in history, fact and logic.
The age and health of senators is another thing to keep in mind. Throughout the nation’s history, 301 lawmakers have died in office. Seven current senators will be at least 80 years old by the November 2022 elections, though four are Republicans whose replacements would be named by GOP governors or under state law have to come from the same party. Similarly, Sen. Dianne Feinstein would have a replacement appointee come from a Democratic governor. But Vermont’s Patrick Leahy, a Democrat, and Bernie Sanders, an independent who caucuses with Democrats, both represent a state with a Republican governor.
Leahy, 81, was briefly hospitalized five months agoafter suffering muscle spasms, though he has since been given a “clean bill of health” and quickly returned to work. Sanders, 79, was hospitalized in Las Vegas in fall of 2019 while running for president after experiencing “chest discomfort” that turned out to be a blocked artery.
Despite all this, many Democrats and liberal activists contend it’s worth ending the filibuster anyway as a pre-emptive measure. “Democrats face a choice: either accept congressional gridlock where none of their priorities get done, or do away with the filibuster,” explains the group Indivisible, which formed to fight the incoming Trump administration.
After all, in this telling, McConnell as Senate majority leader hasn’t been shy about bending and ending the chamber’s norms and rules, including in 2016 refusing to consider then-President Barack Obama’s Supreme Court appointment of Merrick Garland.
Whatever else he’s done, however, McConnell has moral authority on the filibuster issue, since he declined to push for its end when Republicans held complete control in Washington. In early 2017 Trump urged McConnell to “go nuclear” and end the filibuster altogether. McConnell retorted, “That’s not a presidential decision. That’s a Senate decision.”
If Senate Democrats do go ahead with ending the 60-vote threshold on all legislation as well, they can’t say they weren’t warned of the consequences.
Democrats would be wise to emulate him in this case at least. On the previous occasion the party limited the filibuster, it came back to haunt them. In 2013, after what they called unprecedented obstruction by Republicans against Obama nominees, Democrats abolished the filibuster on confirmation of federal judges below the Supreme Court level.
But then in 2017, when Republicans faced a Democratic blockade on Trump’s nomination of Neil Gorsuch to the Supreme Court, McConnell simply followed suit by expanding the filibuster ban to include Supreme Court appointments.
If Senate Democrats do go ahead with ending the 60-vote threshold on all legislation as well, they can’t say they weren’t warned of the consequences. Their vote on lowering the filibuster should include a pledge, in writing, that they won’t complain about legislative impotence when they’re back in the minority.