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November 28th, 2021

Insight

Dems will live to regret it if they nuke the filibuster

Rich Lowry

By Rich Lowry

Published March 19, 2021

Dems will live to regret it if they nuke the filibuster
There's nothing that ails President Joe Biden's agenda, we are supposed to believe, that ending the filibuster wouldn't fix.

Biden showed a little leg on changing the filibuster in an ABC News interview, while almost every Senate Democrat wants to ditch it. Even Joe Manchin of West Virginia, who still supports the filibuster, said a couple of weeks ago that resorting to it should be more "painful."

Senate Democrats probably remain a few votes shy of really being able to trash the filibuster, which would require the support of every Democrat (plus, Vice President Kamala Harris as the 51st vote), but they are steadily talking themselves into curtailing or abolishing it as a political and moral necessity.

This would be a mistake, both for the institution of the Senate and for the Democrats' narrow partisan interests.

One would think that the experience that the party had the last time it took a hatchet to the filibuster would warn it off any repeat.

In 2013, Senate Majority Leader Harry Reid blew up the filibuster for most presidential nominations. No longer would it take a cloture vote passed with the support of 60 senators to confirm nominees, but rather a simple majority. Reid did this against the warnings of then-Minority Leader Mitch McConnell, because he and the Democrats had worked themselves into a lather to confirm Obama nominees to the DC Circuit Court of Appeals.

It's a cliche for senators who support the filibuster to say that control of the body inevitably changes, but it's true. Today's triumphant, inflamed majority tempted to ditch the filibuster is tomorrow's embattled, desperate minority using it to wield influence that it otherwise wouldn't have.

Three years after Reid's move, McConnell was using it to render Democrats bystanders as he transformed the federal judiciary. President Donald Trump got about as many nominees on federal appellate courts in four years as Obama did in eight.

Then, when Democrats filibustered Neil Gorsuch's nomination to the Supreme Court, McConnell used the Reid precedent to end the filibuster for Supreme Court nominations. Gorsuch, Brett Kavanaugh and Amy Coney Barrett now sit on the high court as a result.

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Democrats, including Chuck Schumer, said they regretted what Reid had done, although Schumer has now apparently gotten over it.

If the rules around the filibuster have changed over time, the basic practice dates from the beginning of the Senate. The tactic got its name in the mid-19th century, and has remained part of the identity of the Senate ever since.

There is now an effort to brand the filibuster as inherently an instrument of hatred and repression. The filibusters of civil-rights legislation in the mid-20th century are justly notorious, but the tactic has often been used to progressive ends, most recently thwarting as much of Trump's legislative agenda as possible.

Back in 2017, more than 30 Senate Democrats, including Kamala Harris, signed a letter urging the tactic be preserved. Of course, Biden himself had long favored it. As late as last year, he was saying that ending the filibuster would be "a very dangerous move."

Democrats have changed their tune now, obviously, because they control the Senate. But the timing still isn't propitious for them. It's not as though the Democrats have a robust majority. They have the slightest advantage, thanks to Harris, in a 50-50 Senate. An unexpected retirement or illness could put their control in jeopardy, and it's hardly a guarantee they will hold the majority after 2022.

Even if they ended the filibuster tomorrow, it's not clear that their most prized priorities, like the HR 1 voting bill, could even get 50 votes to pass.

Biden and Manchin are flirting with the idea of restoring the "talking filibuster," for which senators have to hold the floor to keep up a filibuster. This makes even less sense. A return to the talking filibuster would allow Republicans to eat up more of the Senate's time, and soak up cable TV and social-media attention in the bargain.

Despite all this, Democrats may eventually persuade themselves to move against the filibuster anyway — and, once again, experience momentary satisfaction and lasting regret.

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