Essential Politics: Limit filibusters or accept defeat? Democrats are inching toward a stark choice

Senate Majority Leader Charles E. Schumer (D-N.Y.) at a news conference Thursday on Capitol Hill.
Senate Majority Leader Charles E. Schumer (D-N.Y.) at a news conference Thursday praised House passage of gay rights legislation, which faces a potential filibuster in the Senate.
(Jacquelyn Martin / Associated Press )

This is the Feb. 26, 2021, edition of the Essential Politics newsletter. Like what you’re reading? Sign up to get it in your inbox three times a week.

A measure to cut child poverty nearly in half, another to raise the minimum wage to $15 an hour, a third to end job discrimination against gay men and lesbians — Democrats have a far-reaching legislative agenda, but already, the threat of Senate filibusters has constrained their choices.

The first sacrifice to the Senate rules came this week as the parliamentarian ruled that Biden’s proposed minimum wage increase did not fit into the narrow category of spending and tax measures that can evade filibusters. The ruling came the same day that the House passed the Equality Act, a measure to prohibit discrimination against LGBTQ Americans which previous Republican filibusters have blocked in the Senate.


Still to come are at least two more measures expected to pass the House — a voting rights bill and a measure to reform police practices — which core Democratic constituencies ardently want, but which face grim chances in the Senate because of the power the minority has under the rules to block the majority.

The prospect that a large part of their agenda could go nowhere, even though their party controls both houses of Congress and the White House, has angered many Democratic activists. They’ve put abolition of the filibuster into the spotlight to a degree not seen for nearly half a century. A book denouncing the filibuster by Adam Jentleson, a former aide to Sen. Harry Reid (D-Nev.), has become required reading for progressive Democrats.

So far, President Biden and key Democratic senators, notably Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have resisted changing the rules. In the 50-50 Senate, Democrats would need agreement of their entire caucus to act.

But as White House officials like to note, the Biden presidency is barely a month old. As time passes and bills don’t, pressure will grow.

Filibuster vs. democracy

No one ever planned the filibuster.

As scholars have shown, the men who wrote the Constitution intended the Senate to work by majority rule, as the House does. Over the decades, however, the Senate’s tradition of allowing lengthy speeches evolved into one in which debate could continue without end, blocking legislation.

In 1917, the Senate adopted a rule requiring a two-thirds vote to end debate. Over the next half century, filibusters, enforced with marathon speeches, became the prime tool for southern senators to block civil rights bills.

In 1975, the Senate adopted a new rule allowing 60 senators to end debate. Reformers expected that change would weaken the filibuster’s power. But an unexpected thing happened — the weaker filibuster became more common.

Senators began threatening extended debate on so much legislation that by the early 2000s, the 60-vote threshold had become a de facto requirement for nearly everything of consequence.

That led to several moves to further curtail filibusters. In 2013, a Democratic-majority Senate changed the rules to allow most nominations to pass with a simple majority. In 2017, a Republican-controlled Senate expanded that exemption to include Supreme Court nominations. Even earlier, in 1980, Congress agreed that certain spending and tax measures could pass the Senate by majority vote under a special process known as budget reconciliation.


The resulting messy set of rules and exemptions governs the Senate today, giving extensive power to the parliamentarian, a theoretically neutral staff member whose job is to sort through the chamber’s precedents and, among other things, determine what fits within the filibuster exemptions.

That’s why the proposal to cut child poverty by revamping the existing child tax credit has a very strong chance of passing: It fits within the budget rules as part of the current $1.9-trillion COVID-19 relief package and has unanimous Democratic support.

Winning that expansion would mark a major accomplishment — “the most important thing I’ve done in my political career,” Sen. Sherrod Brown (D-Ohio), one of the main Senate sponsors, said on a call with reporters on Thursday.

Expanding the credit to cut child poverty in half “will result in a 1:8 return on investment,” said Wes Moore, chief executive of Robin Hood, a New York-based anti-poverty organization.

That’s based on a study by the National Academy of Sciences which found that over time, cutting child poverty in half would expand the U.S. economy by up to $1 trillion a year through increased productivity, lower health costs, reduced crime and other benefits — roughly eight times more than the cost of expanding benefits.

But because of the way the rules work, Democrats will expand the child credit for just one year in the current bill. They’ll need to do it all over again later this year to make the change permanent.

Other party priorities face an even more complex path. After the parliamentarian’s ruling Thursday that the $15 minimum wage couldn’t fit into what the rules of budget reconciliation allow, Sens. Bernie Sanders (I-Vt.) and Ron Wyden (D-Ore.), who head the Budget and Finance committees, respectively, said they may try a work-around that would raise the minimum wage for at least the nation’s largest companies. Their proposal would impose a tax on big companies that pay their workers less than $15 per hour.

But if they want to raise the wage for all, Democrats will likely need to pass a separate measure with 60 senators. They currently don’t have the votes.

For measures like the Equality Act or voting rights, which don’t involve the federal budget at all, the 60-vote hurdle is more intractable.

Democrats have a range of choices. Senate Majority Leader Charles E. Schumer of New York could bring a series of civil rights-related bills to the floor, for example, and dare Republicans to actually show up and talk them to death the old-fashioned way. The majority could also change the rules to further lower the vote requirement for ending debate without going all the way to majority rule or to carve out more exceptions.

A lot of older Democratic lawmakers, including Biden, are loathe to take those steps. They’ve seen filibusters block Republican legislation and argue that the rules can protect both sides.

Many younger Democratic lawmakers and activists disagree: The filibuster helps Republicans far more than Democrats, they argue, because it has given the GOP the power to control the agenda even though the party’s lawmakers represent a minority of the nation’s population.

So far, Biden has been able to mostly stay out of that argument. His COVID-19 package is moving toward passage — the House likely will approve it Friday evening, and the Senate will start debate next week. Knocking the minimum wage out of the package actually improved the bill’s odds since the increase was one of the few parts of the bill that lacked unanimous Democratic support.

Avoiding the filibuster issue won’t work forever, however.

Republicans have shown little reluctance to use the rules to the fullest. Whether the test comes on the Equality Act, voting rights, policing or some other priority, at some point in this Congress, Democrats will face a stark choice: Limit filibusters or accept defeat.

One nominee in trouble, others move ahead

Neera Tanden, Biden’s nominee to head the Office of Management and Budget, continues to linger near the edge of defeat after Manchin said he would vote against her. White House officials have been looking for a Republican to provide the 50th vote for Tanden, and Sen. Lisa Murkowski of Alaska appears to be their best hope. Tanden is scheduled to meet with Murkowski on Monday.

The Tanden nomination is just one example of how Manchin drives many Democrats crazy, Doyle McManus noted. But, he wrote, they need more senators like him.

In the meantime, Xavier Becerra‘s confirmation as Health secretary looks likely after two smooth committee hearings, Sarah Wire reported. Republicans have opposed Becerra, currently California attorney general, because of his support for abortion rights, his defense of California rules restricting religious gatherings during the pandemic and other issues, but so far, all Democrats have stuck with him.

As Biden’s Cabinet starts to fill up, the Senate this week confirmed Jennifer Granholm as energy secretary, Linda Thomas-Greenfield as ambassador to the United Nations and Tom Vilsack as agriculture secretary, bringing the confirmed total to 10. Two other nominees, Rep. Debra Haaland as interior secretary and Miguel Cardona for education, passed major procedural hurdles.

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The Harris beat

Vice President Kamala Harris has taken on a big role in trying to persuade Black communities to get the COVID-19 vaccinations, but as Noah Bierman wrote, distrust remains high.

In recent days, Harris has called local Black radio stations, recorded separate interviews with NBC’s “Today” show and with the Rev. Al Sharpton, and made calls to community leaders in addition to a visit to a vaccine clinic at a pharmacy in a largely Black neighborhood of Washington, Bierman reported. As vaccine supplies continue to increase, hesitancy to take the shots has become an increasingly urgent issue for the administration.

The latest in politics

At this year’s CPAC gathering, there’s just one litmus test: Loyalty to Trump, Eli Stokols and I wrote. In the past, the annual conference has provided a forum for debate on the right, but this year, there will be no dissent allowed.

Increasingly, Republicans are seeking to restrict voting, and the Arizona GOP is taking the lead, Melanie Mason wrote.

The latest from Washington

As the House prepares to pass more COVID-19 relief, Chris Megerian looked at what’s in the bill?

With computer chips scarce, Biden ordered a review of the nation’s supply chains, Megerian wrote.

The Supreme Court seemed closely divided this week as the justices heard arguments in the case of a California motorist pursued by a CHP officer into his home, David Savage wrote. The case poses an unresolved issue: Just how far can police go when engaging in “hot pursuit” of a suspect?

The administration is about to declassify part of an intelligence report on the murder of Jamal Khashoggi, the journalist whose killing reportedly was ordered by Saudi Arabia’s crown prince Mohammed bin Salman. Release of the report, which the Trump administration kept under wraps, is likely to worsen relations with the Saudis, Megerian and Tracy Wilkinson wrote.

The latest from California

Rep. Kevin McCarthy (R-Bakersfield) has mastered cozying up to Trump, but will that make him House speaker? Jennifer Haberkorn and Evan Halper examined the House Republican leader’s path.

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