At a moment when many of the Democrats running for president have suggested that they would at least be open to scrapping the Senate filibuster, Sen. Cory Booker has emerged as the field’s voice of extreme caution. At a candidate forum on Monday, he made a surprisingly impassioned case for why the party should think twice about doing away with the procedural hurdle, which requires 60 votes to end debate on most legislation. The filibuster, he suggested, prevented the Trump administration from attacking programs like Medicare and Medicaid and saved the Affordable Care Act from repeal. Without it, “Obamacare would be gone,” Booker said.
As many activists and journalists noted on Twitter, Booker’s argument is not strictly true. Senate Republicans tried to repeal Obamacare in 2017 using the budget reconciliation process, a special procedure that prevents filibusters on tax and spending bills, allowing them to pass with just a bare majority. With Vice President Mike Pence ready to act as a tiebreaker, the GOP only needed 50 votes in the chamber to repeal and replace the health law. But thanks to John McCain’s famous late-night thumbs-down and his opposition to later repeal efforts, Republicans never hit the lower threshold. Technically, the filibuster wasn’t the issue.
This bit of history matters deeply to progressive activists, who want to eliminate the filibuster so that it doesn’t bottle up the most ambitious parts of their agenda. They believe the Obamacare showdown proved once and for all that the thing stopping Republicans from cutting back the safety net is public opinion, not Senate procedure, and that Democrats therefore have much more to gain than lose by jettisoning the 60-vote bar.
But others think that Booker may have had a point. Without the filibuster standing in the way, they say, Senate Republicans would have had more leeway to craft a bill capable of winning 50 votes. Instead, Mitch McConnell and Co. stumbled—and ultimately failed—thanks to the messy compromises and time constraints that were necessary to meet the requirements of reconciliation. (Reconciliation can only be used to pass legislation that directly affects the federal budget—meaning it can’t be used to enact purely regulatory changes.)
One problem with this counterfactual is that there aren’t a lot of data points to back it up. Probably the best piece of evidence is that, in late September 2017, Senate Republicans tried to pass a comprehensive repeal-and-replace bill known as Graham-Cassidy before their time frame for employing the legislative tool they needed to use for reconciliation expired. That effort failed when McCain announced his opposition, citing the frenzied, last-minute nature of the effort. “I would consider supporting legislation similar to that offered by my friends Sens. Graham and Cassidy were it the product of extensive hearings, debate and amendment. But that has not been the case,” he said in a statement at the time. “Instead, the specter of September 30th budget reconciliation deadline has hung over this entire process.” Perhaps with an extra month or two to spare, Republican leaders could have teed up a few hearings to satisfy McCain. But because of reconciliation’s rules, they didn’t have that time.
Then again, a few hearings might not have been enough. In the same statement, McCain called for bipartisan cooperation on health care. The senator also clearly had substantive concerns about repeal—as Politico reported, he left one meeting “holding an article listing the problems his state would see if the bill became law”—that he might have been publicly covering up by talking about his procedural qualms. In the end, his positions on health care were often a bit inscrutable and seemingly contradictory. Nobody really knows exactly why Mr. Maverick did what he did.
There were other instances where the Republicans clearly got tripped up trying to evade the filibuster. But how much those moments mattered in the scheme of things remains a bit murky. For instance, the first comprehensive repeal-and-replace bill the Senate tried to pass—known as the Better Care Reconciliation Act—ran into trouble when the Senate parliamentarian ruled that parts of it were ineligible for reconciliation, meaning, among other things, that Democrats could have filibustered it. But in the end, they didn’t have to; the bill died 43–57. It earned opposition from moderate Republicans like Lisa Murkowski and Susan Collins, who thought the bill was too severe, and hard-liners like Rand Paul, who thought it was “Obamacare-lite.”*
So Booker’s point is debatable, at best. But even if it were true, it’s unclear what it would mean about the value of the 60-vote rules going forward. After all, Republicans might still have been able to repeal the Affordable Care Act if they’d had an extra couple votes in the Senate. It’s conceivable Senate rules helped save Obamacare two years ago. That doesn’t necessarily mean the filibuster is worth keeping around.
Correction, April 2, 2019: This piece originally misspelled Susan Collins’ last name.