Will the filibuster kill Democrats' dreams?

BloombergOpinion Early Returns

Jonathan Bernstein

Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe. Liberal Democrats are upset this week that Senators Joe Manchin and Jon Tester have joined Kyrsten Sinema in saying they'll never vote to end the legislative filibuster. Since the best Democrats could hope for in 2021 is 52 senators, the argument goes, this means that Republicans will likely filibuster everything and the entire Democratic agenda is dead on arrival — even if the party wins unified control of government. Well ... it's true that Democrats are very unlikely to wind up with more than 52 Senators. And it's true that Republicans will likely filibuster everything. The rest? Not really. The downside for liberals is that a very slim Democratic majority in the Senate wouldn't be able to pass most far-reaching liberal bills. But that's not because of the filibuster; it's because Manchin in particular just isn't very liberal, and he likely won't be alone in opposing, say, much of what Senator Elizabeth Warren's campaign has proposed. Democrats may not even have simple majorities for a lot of liberal priorities.  On the other hand, when they do have the votes, they can still achieve some of their goals through reconciliation, a procedure that allows certain bills to bypass the filibuster. Other priorities may turn out to have the 60 votes needed to beat the filibuster after all. The Violence Against Women Act, for instance, has lapsed in this Congress because of disputes between the House and Senate. The Republican majority has kept the bill from even coming to the Senate floor. If Democrats won back the chamber, many Republicans who are staying silent now might not be willing to vote against the bill or kill it by filibuster. And yes, even in polarized times, compromising and deal-making are still possible.  In fact, all three of those options — using reconciliation, finding minority support and cutting deals — were used successfully during Barack Obama's presidency, even though Republicans collectively tried to stop practically everything. Such an approach can yield a patchwork of random successes out of a more general pattern of obstruction and defeat, but it's not nothing. That said, don't take what people say about filibusters all that seriously. Voters rarely care about procedure, including flip-flops over procedure, so there's little cost to making and breaking promises of this type, especially since anyone changing positions on the filibuster would be doing so to pass a bill that their constituents supported.  Moreover, there's a trade-off here: The less viable that compromise and minority support looks, the more likely that Democrats will be open to filibuster reform. And it's easy to imagine half-measures. When Democrats eliminated the filibuster for judicial and executive-branch nominations in 2013, they made an exception for the Supreme Court, but everyone knew that wouldn't last long. So if they voted to exempt, say, statehood bills from the filibuster, that would almost surely lead to more and more carve-outs until the legislative filibuster was effectively dead.  The bottom line: A rule that serves to block everything a majority wants that can be overturned by that majority simply isn't stable. The legislative filibuster has lasted this long because once the norm eroded that filibusters were only used by the most intense minorities — something that happened gradually in the 1980s and 1990s — the circumstances for repealing it have rarely been in place. Most of the time, divided government has made the filibuster a relatively unimportant hurdle. I'm in favor of protecting intense minorities in the Senate and the influence of individual senators, so I'd like some version of the filibuster to continue. But I doubt it'll survive the next time it blocks the bulk of a party's agenda.  1. Harold Clarke, Matthew Goodwin, Marianne Stewart and Paul Whiteley at the Monkey Cage on the U.K. elections. 2. Jennifer Victor at Mischiefs of Faction on political engagement. 3. Brianne Pfannenstiel at the Des Moines Register on thousands of presidential campaign events in Iowa. 4. Perry Bacon Jr. on the latest from Bright Line Watch.  5. Here at Bloomberg Opinion, Thomas Geoghegan argues for ending Donald Trump's presidency with a settlement enforced by legislation. Plausible! Vice President Spiro Agnew resigned in a plea deal in 1973. But I suspect Trump wouldn't go along unless the votes were already there for removal, and if that were the case it's unlikely Congress would offer him much of a deal, so it's hard to get the precise alignment that would make this work.  Get Early Returns every morning in your inbox. Click here to subscribe. Also subscribe to Bloomberg All Access and get much, much more. You'll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close.

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