Democrats are weighing their options when it comes to the filibuster, arguing that the tool that requires a supermajority of votes and usually bipartisan support to pass legislation cannot be used to block them at every turn if they win back the Senate majority and the White House.
Some Democrats are saying it is too soon to talk about the fate of the legislative tool with just a little over a week to go until Election Day.
While Democratic leaders have tried to downplay any threat to the filibuster in recent weeks, arguing that discussing tactics ahead of November 3 isn’t what matters to voters, some rank-and-file members are entertaining the idea of eradicating the legislative tool if they find themselves back in control of government and Republicans stand in their way.
“Look, I like the filibuster. I think bringing people together to find common ground is really important,” said Democratic Sen. Jon Tester of Montana. “But I will also tell you I didn’t come here to do nothing. So if Republicans are in the minority and they just stonewall stuff, and it doesn’t look like we are going to get anything done, I will reconsider.”
Sen. Angus King, an independent from Maine who caucuses with the Democrats, also told CNN that he’s long backed the filibuster, but wouldn’t rule out getting rid of it if Republicans blocked a Democratic President’s agenda at every turn.
“I think it is an important protection for the minority and some incentive toward bipartisan legislation is important, but that is based upon the premise, however, that the minority does not abuse the rule,” King said. “If it is abused, I am subject to changing my view.”
Monday’s vote to confirm Amy Coney Barrett to the Supreme Court serves as a stark reminder of just how quickly rules have changed in the US Senate. Supreme Court nominations, which once required 60 votes, now just require a simple majority. The rules changes span two leaders with then-Senate Majority Leader Harry Reid, a Nevada Democrat, moving in 2013 to eradicate the filibuster on lower court nominees and executive branch nominees and Majority Leader Mitch McConnell moving in 2017 to scrap the filibuster on nominations to the Supreme Court .
The legislative filibuster — the tool that requires a 60-vote threshold to pass new laws — however has remained intact so far.
If former Vice President Joe Biden were to win the presidency along with a Democratic Senate majority, the pressure from the Democratic base to pass a liberal agenda and quickly would intensify, putting Senate Democrats in the crosshairs of their base if they refuse to make rules changes.
Sen. Tim Kaine, a Democrat from Virginia, said his party may need to be open to changing the rules if it means passing popular legislation.
“The rules are just not that important to me. What is important to me is getting stuff done so if we were to get a majority. There is a lot of stuff that I want to get done and if trying to get the minimum wage increased for example, if Republicans throw up an artificial roadblock in my way, I am inclined to say, ‘Wait, it is what people want, it is what we promised,'” Kaine said. “I am not going to elevate an artificial rule over the substance of what I am here for, but I also don’t come into this saying we have to change a rule to change a rule,” Kaine said.
If Biden wins, the first months could be a legislative whirlwind with Democratic voters hungry to reverse President Donald Trump’s immigration policies and pass longstanding Democratic priorities like raising the minimum wage. Without a supermajority, Democrats would be forced to either win over a handful of Republican senators for every single vote in a Senate or do away with a legislative tool that has existed in the body for more than a century.
“I think everything is on the table,” Sen. Tammy Duckworth, a Democrat from Illinois. “I think it is something for our caucus to discuss as a caucus, but the Republicans have not included us in many of those considerations so I don’t understand why they would think they should get any input at this point.”
While the filibuster has long been seen as a protective tool for the minority and forced bipartisan compromise to get things done, years of intransigence, partisan bickering, a slowing legislative agenda and the potential to control the White House, the House and the Senate is forcing some Democrats to reconsider whether the tool is useful anymore.
“I am very open to revisiting the whole filibuster question,” Hawaii Democratic Sen. Mazie Hirono said. “I was one of the people who actually thought the filibuster protected minority perspectives, but notice we are in the minority and our views are ignored most of the time. So I would like to talk about filibuster reform, sure.”
Most Democrats argue that any rules changes shouldn’t come immediately, but should instead only follow a legislative blockade by a Republican minority.
“We have to know what the lay of the land is in a whole bunch of ways. I want the Senate to work. I want us to pass legislation for the good of the country,” Sen. Tina Smith, a Democrat from Minnesota, told CNN. “It’s premature to talk about it.”
Other Democrats flat-out argued now is not the time to discuss the change.
“Isn’t there something else happening,” Sen. Chris Coons, a Democrat from Delaware said referring to the election before declining to answer CNN’s question about how he felt about the filibuster.
“We’re not dealing with that today as far as I know,” Sen. Gary Peters, a Democrat from Michigan up for reelection, told CNN.
Sen. Michael Bennet, a Democrat from Colorado, told CNN, “We will see what happens after the election.”
But the pressure to continue chipping away at the filibuster is going to be felt by a Democratic base eager to reverse Trump’s policies.