Will the Senate Take Off the Handcuffs?  

CHICAGO – In the Democratic National Convention hall, in side events in hotel ballrooms and conference centers, and on the campaign trail, lawmakers and candidates are promising big change. They have promised to codify Roe v. Wade and end the assault on reproductive rights. They have promised to end gerrymandering and voter suppression in a pair of consequential voting rights bills, the For the People Act and the John Lewis Freedom to Vote Act. They want to address affordable housing, and child care, and paid family and medical leave, and child poverty; they want to transform the tax code; and so on.

To accomplish all of this, or at least to make it unencumbered by artificial constraints and rules and processes, they need to end the circumstance whereby a minority of members in the U.S. Senate get a veto over everything the chamber does. At the heart of the entire agenda that this convention’s pitch is predicated upon is the imperative to reform the filibuster.

Republicans will not vote for abortion rights or voting rights; under a 60-vote Senate, those bills will fail. You could technically get tax reform and care economy investments done the way it was done in 2022 in the Inflation Reduction Act, by using budget reconciliation. But that carries with it complicated rules about spending limitations within the ten-year budget window.

Because Kamala Harris’s tax plans would raise trillions of dollars, by eliminating Trump-era tax cuts for the rich, along with raising the corporate tax rate to 28 percent, that would seem like no problem. But with the Child Tax Credit expansion costing over $1 trillion within that same ten-year window, Senate Majority Leader Chuck Schumer (D-NY) promising to repeal the cap on state and local tax deductions costing hundreds of billions more, the no taxes on tips proposal hundreds of billions more, and a drive to devote some portion of the proceeds to deficit reduction even more, those dollars won’t stretch as much as people expect. The only way to ensure the full agenda can be passed without constraints is by ending the filibuster.

There has never been a time when the Senate is closer to unshackling itself from this tyranny of the minority than right now. After decades of talk, Democrats decided in unprecedented fashion to carve the two voting rights bills out of the filibuster and use a different process for them that would have required the minority to actually get on the floor and object, repeatedly, with a vote all but guaranteed at the end. This so-called “talking filibuster,” pioneered by Sen. Jeff Merkley (D-OR), was the culmination of a 15-year odyssey to break the minority veto. But two of the 50 members of the Democratic caucus, Sens. Joe Manchin (I-WV) and Kyrsten Sinema (I-AZ), opposed the reform. All 48 other sitting senators supported it, but without a majority, it lost.

That is, in theory, no longer a problem. “The two folks who have been most opposed to filibuster reform are Manchin and Sinema, and both are retiring from the Senate,” said Sen. Gary Peters (D-MI), chair of the Democratic Senatorial Campaign Committee (DSCC), at a pen and pad briefing on the sidelines of the DNC. The inference is that, with Manchin and Sinema out of the way, the Senate can get on with doing the people’s business.

But that comment aside, senators asked about filibuster reform by the Prospect at the DSCC event were remarkably reticent to come out and say that they would remove the main impediment to the promises they are boisterously announcing to the nation. “Senators and candidates have a variety of views on filibuster reform,” Peters followed up quickly after saying that the main obstructors of reform are now gone.

Sen. Catherine Cortez Masto (D-NV) added that on the campaign trail, “the issues that matter are the kitchen-table issues … access to health care, affordable housing, how do we keep communities safe.” The implication is that process stuff like the filibuster doesn’t come up. But of course it doesn’t come up; no process issue has headed campaign rhetoric in American history! The point is that none of those kitchen-table issues can actually be realized without dealing with process.

This reticence by senators to say clearly to a reporter who wants to know that the Senate will not handcuff itself on the popular agenda Democrats are presenting to the public perhaps speaks to the fact that Manchin and Sinema were convenient scapegoats, able to take all the heat for blocking things that other senators may not want to see passed. Maybe some other senator will step up in their absence, and the cycle will repeat.

But to the extent that there is a plan, related to me by other senators at the DNC, it goes like this. The first item on the agenda will be restoring Roe, and I’ve been assured there are 50 votes (provided Democrats win all the Senate battlegrounds) for that. Democrats will carve out an exception from the filibuster for that. Then, nearly all Democratic senators are already on the record for carving out the voting rights bills from the filibuster. Rep. Ruben Gallego, the House member running to replace Sinema in the Senate in Arizona and one of the few who wasn’t in the Senate for that 2022 vote, has come out squarely for killing the filibuster, as did Sen. John Fetterman (D-PA) last cycle.

Sen. Raphael Warnock (D-GA) was clear that he is “deeply interested” in getting the voting rights bills passed outside of a filibuster. “The problem now is that the filibuster doesn’t cost you anything,” said Warnock. “I call it a latte filibuster, you can go across the street and have a latte, it’s not painful.”

So if successful, that’s two carve-outs. Once you’ve done that, how can you tell other advocates who have been working on their issues for years that the Senate’s hands are tied? Suppose the PRO Act, which would make it easier to join a union, came up for a vote. After saying yes to women and saying yes to voters of color, how could Democrats get away with saying no to unions without paying an electoral price?

Of course, this depends on the advocates knowing the score. As my colleague Harold Meyerson mentioned, I participated in a roundtable discussion that UAW president Shawn Fain had with reporters. I asked Fain if he would expect the Senate to get the PRO Act done, and to abolish or limit the filibuster if they have to in order to do it. “I expect the PRO Act to pass for sure,” he said. “As far as the filibuster goes, I don’t know where that goes right now.” I replied that if the filibuster isn’t broken, the PRO Act cannot pass. “I would say we hope so, we’d like to see that for sure.”

I asked if Fain had talked to senators personally about filibuster reform. “We’ve talked to a lot of representatives about the PRO Act and our expectations … It’s one of the reasons why when it came to the selection for vice president, we didn’t consider the senator from Arizona for that reason, because he didn’t support the PRO Act,” he said, referring to Sen. Mark Kelly.

It’s worth remembering that Fain is very new on the political scene, having only been elected in the last year. But he didn’t quite seem to grasp that filibuster reform underlies any successful legislative agenda for Democrats, particularly on issues with thin Republican support like unions.

I do think that once you start carving out exceptions to the filibuster on legislation, it’s functionally dead, just as we saw on nominations. So the strategy of carve-outs followed by enough browbeating to whittle away more and more until you no longer have a stick does have some logic. But advocates have to play their part in that too, knowing their role in not allowing senators to make any excuses anymore once they’ve shown they have the power to pass things by majority vote.

There will still be a lot of momentum to revert back to mythologizing bipartisanship, however. After the briefing, I caught up with Sen. Warnock again and asked about the filibuster. Despite his insistence on exempting voting rights bills from the minority veto, he started talking about how on the Child Tax Credit expansion, there could be 60 votes in the Senate. But that deal is on the table now, having passed the House, in a way that was very favorable to Republican interests (there are three times as many business tax cuts, in terms of value, as there are Child Tax Credit expansions in that bill). Yet Senate Republicans have blocked it, using the filibuster.

I asked Warnock about that. If you can’t even get a right-leaning CTC expansion done, why would you think a bipartisan solution could be forged? “Because the closer you get to the election the more people start to play games,” he said, intimating that cooler heads would prevail outside of an election cycle.

But the entire Mitch McConnell era in the Senate is a testament to the fact that cooler heads often do not prevail, and that it’s always an election cycle. The filibuster has evolved into a constant block on progress. Democrats are promising to change the world, but will they change the Senate rules to make that happen?

Warnock concluded, “I am singularly focused on winning this election because there’s so much at stake.”

David Dayen is the Prospect’s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is ‘Monopolized: Life in the Age of Corporate Power.’

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