Politics

The Senate Is About to Face Its First Real Filibuster Test

Will Republicans flex their power to block a bipartisan Jan. 6 commission?

Mitch McConnell speaks at a mic with three other Republicans behind him
Senate Republican leaders speak to reporters after the weekly Republican policy luncheon on Capitol Hill on Tuesday. Kevin Dietsch/Getty Images

Not all Senate Republicans are ready to kill legislation setting up an independent commission to investigate the Jan. 6 Capitol riot. Just most of them.

Maine Sen. Susan Collins, for instance, is trying to see through a couple of changes that might allay supposed Republican concerns about the bill. One would involve tightened language giving Republican commissioners a say in staff hiring, even though the current staffing language—essentially a copy-paste of that from the 9/11 Commission—already gives them a lever. Another would shorten the commission’s work to ensure it doesn’t bleed into an election year.

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But most Senate Republicans are past pretending that their opposition to the bipartisan bill that the House passed last week—and which Senate Majority Leader Chuck Schumer said is “likely” to get a Senate vote this week—is based on an ambiguous interpretation of the word “consultation” in the legislation’s staffing clause. The Republican leader, Mitch McConnell, was explicit on Tuesday that the problem with an independent commission isn’t the language, and can’t be fixed with amendments. It’s the politics of keeping Jan. 6 in the news, which is good for Democrats and bad for Republicans.

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“At the heart of this recommendation by the Democrats is that they would like to debate things that occurred in the past, they’d like to continue to litigate the former president into the future,” McConnell told reporters when asked whether he could support the legislation with any changes. “We think the American people going forward, and in the fall of ’22, ought to focus on what this administration is doing to the country, and what the clear choice is that we have made to oppose most of these initiatives. So I think this is a purely political exercise that adds nothing to the sum total of information.”

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McConnell said this shortly after a closed-door lunch in which, as Politico reported, he warned his fellow Republicans “that the report could be released in the middle of the 2022 election cycle, when control of the House and Senate are at stake.”

But as one journey through legislative procedure ends, another begins. Killing the bill will require McConnell’s Republicans to do something they haven’t done all year: filibuster.

Just because the Senate minority hasn’t filibustered something on the floor yet this year doesn’t mean the filibuster isn’t there, in the background, dictating everything that’s happening. The existence of the rule, which requires 60 votes to end debate on a motion or bill, is why Democrats are trying to negotiate with Republicans on other agenda items like gun control, police reform, and immigration, rather than just figuring out what the median policy is between Sens. Joe Manchin and Bernie Sanders.

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But in putting the commission bill on the floor even though it almost certainly won’t get 60 votes, Schumer will force the minority to block something for the first time—and to do so based on what they are now expressly describing as political objections, rather than policy disagreements.

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This first use of a filibuster for bad-faith political reasons may kill the commission, but it gives some much-needed ammunition to liberals advocating for elimination of the filibuster. Ending the filibuster is something Senate Democrats could do, in theory, with Democratic votes alone, but they don’t yet have the votes to do so.

If Republicans block something as benign as an independent, bipartisan investigation into the mob that invaded their workspace, the Democrats upholding the filibuster will be put to the test. “For some of my colleagues in the Democratic side who support the filibuster in the extreme,” Senate Majority Whip Dick Durbin told reporters Tuesday, “we’re going to have to have an explanation.”

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“This is all cumulative,” Durbin said. “There may reach a point where it does lead to some changes in the rules.”

The two most ardent Democratic defenders of the filibuster are West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema. Their steadfast refusal to consider either nixing or weakening the rule has made them folk heroes among Senate Republicans, who have been instructed to keep saying nice things about them.

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Manchin and Sinema on Tuesday released a joint statement advocating for the Jan. 6 commission. “We implore our Senate colleagues,” they said, “to work with us to find a path forward on a commission to examine the events of Jan. 6.”

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The statement was mostly mocked as Manchin and Sinema, who’ve put their necks on the line to preserve the minority’s effective veto power, “begging” Republicans not to make them look like idiots after they vouched for Republicans’ ability to work in good faith.

But there’s a more pointed, and less dopey, way to read it. Republicans know how valuable Manchin and Sinema are to them, and for them to issue a joint statement is a statement in itself. A purely political filibuster will only increase the intraparty pressure on Manchin and Sinema to reverse their positions, as will each subsequent purely political filibuster. McConnell may feel that Manchin and Sinema have reiterated their devotion to the filibuster enough by now that he can take them for granted and just openly state that he’s blocking something because it could muddy his midterm messaging. Maybe he’s right. Or maybe Manchin and Sinema are warning him not to make a habit of it.

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