Sen. Kyrsten Sinema’s decision to retire at the end of the year makes at least one thing very clear: The filibuster is in big trouble.
Two of its staunchest defenders in the Democratic Caucus, Sinema and Sen. Joe Manchin (D-W.Va.), are now leaving. And Senate Minority Leader Mitch McConnell stepping down as GOP leader won’t do anything to shore up the Senate’s 60-vote requirement on most legislation.
That’s good news to filibuster haters — and a “scary situation” for Manchin.
“It’s time to get rid of the filibuster. The filibuster has been anti-Democratic and has done a whole lot more harm than good,” said Sen. Elizabeth Warren (D-Mass.). “If [Republicans] have legislation they wanted to pass. And the filibuster stood in the way? The filibuster would be toast. It’s total politics.”
Republicans are now starting a race to succeed McConnell, who cut multiple bipartisan deals with Sinema and Manchin in recent years and sought to raise the debt ceiling so the two moderates wouldn’t vote to change the rules. McConnell also refused to change the filibuster when Donald Trump was president as he urged GOP senators to end the longstanding supermajority requirement before Democrats did.
Filibuster politics are highly situational, and both parties have used the legislative tool in recent years to block bills in the Senate — though some Republicans believe their party benefits more from the filibuster. Already the nomination filibuster is no more: Democrats scrapped it for most nominees in 2013 and McConnell finished the job by axing its use on Supreme Court nominees in 2017.
And it’s easy to defend the legislative filibuster from the minority position, as Republicans have the past four years. Sen. Chuck Grassley (R-Iowa) said he was “sure” a Republican majority would keep the filibuster.
But if GOP senators have a good November, McConnell’s successor could easily face intense pressure from Trump and his allies to scrap the rule.
“It’s going to be up to us, and for sure whoever the leader is, to defend the institution. And the role the Senate plays constitutionally,” said Senate Minority Whip John Thune (R-S.D.), who is running against Sen. John Cornyn (R-Texas) in the leader race. “We’ve got to make sure, if we get the majority, that we have a majority of Republicans committed to its defense.”
Cornyn said the filibuster is in “good shape” if Republicans get the majority but he’s “worried about it” if Democrats win this fall. After all, Democrats were just two votes away from dealing a huge blow to the rule two years ago, when the party sought to use the issue of voting rights as the impetus for a high-profile vote to weaken the filibuster in 2022. They only failed due to opposition from Manchin and Sinema.
But if Rep. Ruben Gallego (D-Ariz.) wins his race, Democrats hold the Senate, Biden wins reelection and the party takes the House, another effort to scrap the supermajority threshold seems almost certain. Kari Lake, who is running against Gallego, praised Sinema on Tuesday for showing “courage” on the filibuster and insisted she would not vote to change it.
Sen. Jon Tester (D-Mont.), who may be the most conservative Democrat left in the Senate if he wins a tough reelection bid this fall, said he does not want to abolish the filibuster altogether but would like to make it harder for individual senators to stop bills: “A talking filibuster is not necessarily a bad thing.”
And Democratic leaders aren’t shy about the fact that they still want “real changes in the Senate rules,” as Majority Whip Dick Durbin (D-Ill.) put it.
“This is no longer a deliberative, legislative body,” he said. “We’ve got to change the current set of rules as they are now. I think the Senate is drifting into obscurity.”
