The Filibuster Isn’t Going Anywhere

Why the “nuclear option” remains a progressive pipe dream.

Elizabeth Warren, Cory Booker, and Bernie Sanders.
Sens. Elizabeth Warren, Cory Booker, and Bernie Sanders. Photo illustration by Slate. Photos by Scott Eisen/Getty Images, Theo Wargo/Getty Images for TIDAL, and Alex Wong/Getty Images.

Every few days, a new Democratic presidential candidate joins the race promising a ground-up rebuild of the health care system, a Green New Deal to address climate change, or a sweeping overhaul of the immigration system to represent something more humane. These are ideas that are unlikely to attract meaningful Republican support. And so, unless Democrats can get 60 seats in the Senate, something that certainly won’t happen even in their rosiest 2020 forecast, they would likely need to eliminate the filibuster—the rule that allows 41 senators to block legislation—to achieve most of them.

Under the so-called “nuclear option,” which Democratic and Republican Senate majorities have used in recent years to eliminate filibusters on presidential nominees, the legislative filibuster could be “nuked” with a simple majority of Senate votes. This is exactly what many progressive supporters of major health care, climate, immigration, and gun control legislation want Senate Democrats to do if they can unify control of the government in 2020. But it’s almost impossible to see Senate Democrats doing it. Their margin in the Senate, even if they were able to squeak out a majority, would be razor-thin, and dozens of Democrats have gone on the record in the past couple of years supporting the legislative filibuster. Even if only a few of them are telling the truth, that would be enough to preserve the filibuster and sharply limit the scope of what a Democratic House, Senate, and presidency could achieve relative to their outsized campaign platforms. For all the talk of killing the thing, press ever so gently on the Senate Democratic caucus, and strident defenses of the legislative filibuster gush out.

In April 2017, 61 senators signed a letter to Senate leaders Mitch McConnell and Chuck Schumer recording their opposition to weakening the legislative filibuster. “We are asking you,” the letter read, “to join us in opposing any effort to curtail the existing rights and prerogatives of Senators to engage in full, robust, and extended debate as we consider legislation before this body in this future.”

The majority of the letter’s signees, 32 of them, were Democrats.

Not much has changed since then. In a Thursday story, Politico surveyed a batch of Senate Democrats and found more than enough support for keeping the filibuster. It wasn’t just senators from conservative states, like West Virginia’s Joe Manchin or Alabama’s Doug Jones. Hawaii Sen. Mazie Hirono also said she was against eliminating it because “we’d turn into the House,” the ultimate Senate insult. If Mazie Hirono has a problem with your progressive priority, your progressive priority has a problem.

None of the presidential candidates Politico asked—Kirsten Gillibrand, Cory Booker, Bernie Sanders, or Elizabeth Warren—would outright say that they’d support eliminating the filibuster either. Their answers ranged from clear noes (“We should not be doing anything to mess with the strength of the filibuster,” said Booker) to Warren insisting that the idea should be “on the table.”

Warren’s answer at least seemed to hint that President Warren could be fine with eliminating the filibuster, but she didn’t want to say it outright. That might even be true of a President Booker. Keep in mind—and this is honestly the only optimistic caveat I have for those who hope the filibuster might be torched—that senators, while in the minority, would have good reason to maintain a code of silence about their plans to destroy the filibuster as soon as they get the majority back. So long as Republicans have the majority, some might feel obligated to treat the 60-vote rule with the moral weight of the Bill of Rights and Ten Commandments combined.

But presidential candidates’ feelings about whether to do away with the filibuster aren’t really the issue. Maybe Booker comes around, campaigns on eliminating the filibuster, and wins the presidency. Good for him. How would he get Joe Manchin to change his mind, or Chris Coons, who said just in December, “I’m committed to never voting to change the legislative filibuster”? Would President Booker control the votes of Mark Warner, Tom Carper, or Angus King? Or Chuck Schumer? Senate Republicans typically wake up each day absolutely terrified that President Donald Trump might tweet something mean about them if they disobey his commands, but even they have outright rejected his persistent demands that they nuke the filibuster whenever a prized bill of his gets stuck. The presidential bully pulpit is no match for senatorial self-righteousness about protecting the chamber’s holiest anti-democratic tradition.

Majorities don’t like to admit it, but they appreciate the short-term benefits of the filibuster as much as minorities do. It’s a useful excuse for why they’re not passing all of the polarizing legislation that the House is sending their way. I don’t have a hard count, but the number of Democratic senators who are interested in passing a single-payer health care system, and enduring all the heat that would come with it, is well short of 50 votes. A lot of them won’t want to even go down that path, spending capital on it during those first precious months of a new administration. They’d rather just say, oh, well, we can’t because of the filibuster.

The filibuster wouldn’t preclude a hypothetical unified Democratic government from passing anything of value. They could still use the budget reconciliation process to pass legislation on a party-line basis, so long as that legislation directly pertains to taxes or spending. This is how Republicans passed their tax bill in 2017. President Kamala Harris could pass her top priority, a $3 trillion tax plan, through reconciliation. President Elizabeth Warren could pass her wealth tax through reconciliation. President Cory Booker’s “baby bonds” are essentially cash transfers. Reconciliation.

In other words, the senators running for president seem to have designed their top legislative priorities to run through reconciliation, while nodding politely in the direction of Medicare for all as something else they might give a go. It’s almost as if they, as current members of the Senate, know that the filibuster isn’t going anywhere.