Reasons to be Hopeful About the Filibuster

It's far from a done deal, but there are reasons to be optimistic that Democrats can get Voting Rights Legislation passed before it is too late

It’s been an emotional roller coaster for those who believe the country's fate depends on the Senate ditching an arcane procedural relic. Senator Joe Manchin — preeminent filibuster devotee — shocked the world last Sunday when he said:

If you want to make it a little bit more painful, make him stand there and talk, I'm willing to look at any way we can. But I'm not willing to take away the involvement of the minority.

This comment was widely interpreted as Manchin opening the door to some sort of filibuster reform that could pave the way for Democratic agenda items, including the For the People Act and the John Lewis Voting Rights Act. There was palpable excitement among the “ditch the filibuster” crowd. Manchin’s comments came after a week in which several Senate Democrats had announced their support for changing or getting rid of the filibuster. For a brief moment, it seemed like Senate Democrats might just escape from the legislative prison of their own making.

And then, on Tuesday, Manchin decided to crush those hopes by once again lashing out a reporter who pressed him on the filibuster with this folksy-ish answer.

Jiminy Christmas, buddy. That’s why I even hate to say anything to you," Manchin said in a Tuesday interview. I want to make it very clear to everybody: There's no way that I would vote to prevent the minority from having input into the process in the Senate. That means protecting the filibuster.

At the same time, aides to President Biden further dampened hopes by repeatedly reiterating his support for the filibuster.

But despite all of this, I am more hopeful today than I have been in a long time that Senate Democrats will eliminate the filibuster, pass H.R. 1, and save democracy. It’s very far from a done deal. There is a lot of work to do, but if you squint hard enough and read between the lines, you can see real reasons for optimism.

What’s Up with Manchin?

If anyone in American politics should understand why the filibuster is a giant problem, it’s Joe Manchin.

Progressives (myself very much included) love to dunk on Manchin for his nonsensical and sometimes cruel displays of moderation. But back in 2013, he led the fight to pass the first significant federal gun safety law in a decade. Manchin teamed up with Pennsylvania Republican Pat Toomey to push for universal background checks for firearms purchases in the wake of the mass shooting at Sandy Hook Elementary — an event that shocked and galvanized the nation. Manchin’s background check bill was bipartisan, supported by 90 percent of Americans, and 54 Senators voted for it. But Manchin-Toomey didn’t become law because a minority of Senators used the filibuster to stop it. If bipartisan bills with overwhelming public support and more than 50 votes can’t pass, the system is broken beyond repair.

This experience did not, however, change Manchin’s mind. A few months later, he was one of two Democrats to vote against eliminating the filibuster for judicial and executive nominations. Is he stubborn or stupid?

Neither.

His reticence makes political sense. Trump won West Virginia by nearly 40 points in 2020. He needs the votes of an absurdly large number of Trump voters. His political survival depends on repeatedly demonstrating disdain for the rest of his party. The elimination of the filibuster would be a giant pain in his ass. The filibuster prevents him from voting on a bunch of bills that he probably agrees with but would be akin to political suicide in his state. The fact that he is the deciding vote on everything — including the filibuster — makes the situation even more difficult. In the past, he picked high-profile moments when his vote was not decisive to demonstrate his independence. He voted to confirm Brett Kavanaugh after the confirmation was assured, but he never once wavered in his support for Obamacare despite tremendous political pressure.

Manchin’s comments are quite confusing, but if you parse his words, I think his position is less problematic than it seems. He seems to be saying a couple of different things.

First, Manchin believes that the parties have not tried hard enough to see what stuff can get done on a bipartisan basis. While I personally believe that obstruction is inevitable with a Republican Party that refuses to acknowledge that Biden won the election legitimately, Manchin is correct that the proposition has not been fully tested. I know every day feels like a month during a pandemic, but Joe Biden has been President for less than two months. The Senate has been focused on confirming Biden’s nominees and passing the American Rescue Plan, which was filibuster-proof thanks to reconciliation. The Republicans have yet to use the filibuster to block any part of the Biden Agenda. Many Democratic Senators — not just Manchin — will need a record of obstruction to change their minds.

Second, Manchin is saying he will never vote to eliminate the filibuster completely. We should take him at his word.

But — and this is a giant but — Manchin is making it clear that the filibuster has been abused and that he is open to some sort of reform or compromise. The conversation around the filibuster generally treats it as a “yes or no” proposition. Personally, I am a very strong “no,” but that is not a position that has any realistic chance of getting passed any time soon. However, there are changes that can be made short of complete elimination. Political scientist Norm Ornstein laid out a proposal consistent with Manchin’s recent comments in The Atlantic last year:

There is a simple way to do this—and, in the meantime, keep Rule XXII and mollify Manchin et al. while also providing an opening for Biden and his Democrats to get big things done. That is to flip the numbers: Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.

Stacey Abrams has discussed a narrow exception for laws involving voting rights. Manchin is telling us there just might be a path to getting more stuff done, but the issue is not yet ripe.

Where’s Biden’s Head?

Moments after Manchin’s eye-opening comments about the filibuster, White House Communications Director Kate Bedingfield told CNN’s Jake Tapper:

[Biden’s] preference is not to end the filibuster. He wants to work with Republicans, to work with independents. He believes that, you know, we are stronger when we build a broad coalition of support.

Kate’s statement was widely reported as Biden pouring cold water on the idea of getting rid of the filibuster. I think that is a vastly oversimplistic interpretation. Maybe I am Pollyanna-ish (something of which I am rarely accused), but I interpreted Kate’s comment as keeping the door open. My optimism is based on the word “preference.” Of course, Joe Biden, a Senator for four decades, would “prefer” that the Senate could still function. Biden would always “prefer” to work in a bipartisan fashion. Who wouldn’t? Bipartisan bills are more durable and popular. The question isn’t what Biden would prefer. It’s what happens if/when he doesn't get his preference? Biden gave a hint back in the campaign during a conference call with reporters. As Politico reported at the time, Biden said:

“It's going to depend on how obstreperous they become," the former vice president said of Senate Republicans who might filibuster legislation championed by a potential Biden administration. “But I think you’re going to just have to take a look at it.”

Biden is dealing with competing and perhaps irreconcilable impulses — the desire to unify the country by working in a bipartisan fashion and the desire to get big things done. Because of his unity message, Biden has an obligation to give cooperation a chance no matter how long a shot it may be. And the Republicans have yet to demonstrate their “obstreperousness.”

A public early push from Biden on a Senate rule change is likely to be counterproductive. The Senators most likely to care too much about the filibuster are also the Senators most likely to be very sensitive to the separation of powers optics of a member of the executive branch telling the legislative branch how to do their job. When Senator Reid was working to nuke the filibuster for nominations, he counseled President Obama to lay low.

I have no inside information. I haven’t spoken to a single person in Biden’s orbit about the filibuster, but I worked with the 46th President for a long time. His affection for the institution of the Senate and his optimism for bipartisanship are sincere and run deep. But Joe Biden is also a very pragmatic man who is willing to listen and change his mind as circumstances evolve. Given a choice between keeping the filibuster and getting less done and reforming it and getting a lot done, I am confident he would choose the latter.

Listen to the Leadership

While Manchin and Biden's comments have received all of the attention, something Senator Schumer said the other day flew under the radar. The Majority Leader told Politico:

We're going to figure out a way. It’s a passion of mine to get [election reform] done, when you see what they're doing in the states to change voting rights. Everything's on the table. We have to. What is not an option is not getting bold things done.

Schumer’s comments indicate that he is working on a way around the filibuster. As many have pointed out, Schumer is up for reelection in 2022 and is doing everything in his power to avoid a primary challenge from a progressive like Representative Alexandria Ocasio-Cortez. He is highly motivated to find a way to ensure that voting rights and other progressive priorities don’t get buried in McConnell’s graveyard.

Sahil Kapur @sahilkapur

.@SenJeffMerkley, chief filibuster antagonist, tells me: “There’s been a tremendous sea change in the Democratic caucus, saying: ‘We were elected to solve problems, not to apologize because McConnell stopped us.’ That excuse will not fly, nor should it.”

nbcnews.com‘A tremendous sea change’: Democrats see a path to remaking the Senate filibusterNBC News national political reporter Sahil Kapur discusses more Democrats calling for filibuster reform and says, “it puts the onus on the minority to hold the floor ... and once they stop speaking, once Ted Cruz is done reading ‘Green Eggs and Ham’ the majority can call the vote.”

It’s not just Schumer. Many Democratic Senators — including dyed in the wool institutionalists like Senator Amy Kloubachar — have come out for getting rid of the filibuster.

There’s More Work to Do

Passing the For the People Act is the primary impetus for dealing with the filibuster. And when it comes to that critical piece of legislation, forget Joe Manchin. We haven’t convinced Democratic voters yet.

No matter how anachronistically stupid we think, the Senate rules are, most Senators value them. Politicians are risk-averse by nature, and we are pushing them to take a risky and uncomfortable course of action. They will only do it if their hand is forced. Right now, Democratic voters support the elements of the For the People Act, but they aren’t demanding it.

In a recent Crooked Media/Change Research poll, we asked voters to pick their top three priorities from a list of issues. Only seven percent of Democrats chose the For the People Act. We need to up the urgency among rank and file Democrats. Senators must feel actual pressure. There is a lot more work to educate our voters about the issue and the urgency.

You can join the Vote Save America effort to push for passage of the For the People Act by signing up here.

I don’t know what’s going to happen. Eliminating or reforming the filibuster will not be easy. There is no margin for error, but all of the defeatism is very premature. The key players keep telling us there is a path to success. We just have to listen.