The Senate filibuster to block a voting rights bill was a piece of orchestrated political theater, but Mitch McConnell has done everything within his power to give the proceedings an air of portentous finality. When Senator Kyrsten Sinema reiterated her support for the legislative filibuster, McConnell praised her courage and said she “saved the Senate as an institution.” And then when Joe Manchin joined her, he declared, “I think it’s pretty safe to say this is the biggest day in the history of the Senate because we’re dealing with a Senate as an institution.”
The history of the Senate is a pretty long time, and it’s seen some historically significant moments. McConnell would not be elevating this moment unless he was trying to magnify both the historical continuity of the current filibuster rules and make his audience believe the latest decision was permanent. In both ways, however, he is engaging in spin.
Supporters of the Senate’s current rules like to present them as handed down from the Founders. In fact, the Senate’s rules have changed repeatedly. The Founders considered and deliberately rejected a supermajority requirement. It emerged by accident and was first used after the Founders had disappeared from the scene. Originally, the filibuster was a rare tool to express especially strong disagreement (most often by Southerners against civil rights measures, which is why liberals call it a “Jim Crow relic” — only the shared understanding that Southerners needed a special tool to protect white supremacy sustained the filibuster for so long in defiance of democratic norms.)
The norm that the filibuster would be employed sparingly held through most of the Senate’s history. Only since the 1990s did it metastasize into a routine supermajority requirement. As recently as the early 1990s, legislation still passed with fewer than 60 votes.
The recent emergence of the routine 60-vote requirement has, in turn, forced the Senate to open up escape hatches. Senators of both parties eliminated the filibuster for appointing judges and confirming executive branch officials. Budget reconciliation procedure, a 50-vote method for tax and spending bills, has become the primary tool for parties to exploit unified control of government.
These rules evolved fitfully through negotiations by both parties. But McConnell did more to create them than any single person. McConnell escalated the filibuster into a routine legislative blockade and first discovered the possibility of ending the filibuster for judicial nominees (which he successfully used to force Democrats to stop filibustering judges under George W. Bush.)
The rules McConnell helped design are very much to his liking. The measures he wants to pass can pass with 50 votes: tax cuts, spending cuts, and confirming judges. Measures he generally opposes, like creating new laws and regulations, need 60 votes. (McConnell has attempted to parry this point by warning that he has a list of policies he would pass were it not for the filibuster, but most of these are unpopular right-wing social-issue hobbyhorses, and he is happy to have his hands tied from bringing them to the floor.) As it stands, Democrats needed 60 votes to pass Obamacare, while Republicans needed only 50 to destroy it. (They came up one vote short.) Conservatives could hardly design a more favorable arrangement.
As the filibuster debate has taken shape in recent years, partisans on both sides have developed illusions about each other. Liberals frequently proclaim that Republicans will happily end the legislative filibuster as soon as they regain control of government. I highly doubt this; the existing rules simply advantage Republicans too much for the party to risk blowing them up. Conservatives care far more about blocking Democratic bills than passing their own.
Conservatives, on the other side, have dismissed Democratic demands to end the filibuster as simple partisanship. Didn’t the Democrats use the filibuster themselves under Republican administrations? Won’t they see how wonderful and necessary it is once the shoe is on the other foot?
Republicans like Pat Toomey, Guy Benson, and Glenn Greenwald have all complained about the “contradiction” between Democrats wishing to eliminate the legislative filibuster and still using it to block legislation they oppose. It seems almost insulting to one’s intelligence to have to address this “argument,” but arguing that the rule should be changed is completely different than insisting the use of the existing rules is immoral. If you managed an American League baseball team and urged the elimination of the designated-hitter rule, it would not be hypocritical to continue using a designated hitter if the rule remained in place. To insist that filibuster critics allow Republicans to pass bills with 50 votes while still needing 60 for their own bills is moral idiocy.
The constant use of these schoolyard taunts reflects the right’s inability to recognize the principled arguments against the filibuster and how far they have advanced within the Democratic caucus. They are in for a rude surprise.
It was still common even a few years ago to hear Democratic senators repeating the old pro-filibuster folk wisdom, which imagined the Founders created the filibuster in their wisdom and that without it, chaos would ensue. All of them, save Manchin and Sinema, have come around. And Sinema’s future in politics, either as a candidate or a lobbyist, almost certainly lies outside the Democratic Party.
Democrats are almost certain to lose their control of government in the midterm elections, and it is difficult to say when they will have their next chance. McConnell is trying to cast his victory as an eternal one, ending the debate. But nearly the entire Democratic Party has figured out that, in the long run, the filibuster hurts them more than it hurts Republicans. The next time Democrats gain control, they will do away with whatever remains of it.
