In January, Democrats had a monumental victory: Rev. Raphael Warnock and Jon Ossoff won their runoff Senate races in Georgia, resulting in an evenly split Senate. With newly elected Vice President Kamala Harris breaking ties, Democrats have the Senate majority and a governing trifecta. With Joe Biden and Senate Democrats winning on the most progressive Democratic platform ever, the new governing majority has a mandate to deliver results for the American people, to which they have a political incentive: fail to make changes in the next two years, and Democrats will likely lose both Houses of Congress in the midterms. The moral and political incentives are aligned, and the Biden Administration needs to deliver on its bold promises, including further COVID relief, a $15 minimum wage, the John Lewis Voting Rights Act, immigration reform, the Equality Act, and D.C. Statehood—to name just a few. The list is long, and the political task is steep. And the most substantial challenge is not popular support for their policies (which evidently exists), a fractured party (as even Joe Manchin has supported all of Biden’s major proposals), or obstructive Republicans (who hold no power); it’s the filibuster—an antiquated, anti-democratic rule in an anti-democratic institution that Senate Majority Leader Chuck Schumer and President Biden must move to abolish.
The filibuster is a Senate rule that allows any one Senator to hold up any piece of legislation. It requires a three-fifths (60 vote) supermajority cloture vote to end it and bring the legislation for a vote. The rule has held up countless legislation over the years, including many popular and high-profile pieces of legislation that enjoyed both broad public support and bipartisan, majority support in the chamber. Though it is considered an important part of the Senate, which is lauded as the highest deliberative body in the world, the filibuster has not been around forever. It was instituted at the suggestion of Aaron Burr in the simple overturning of a rarely used rule to instigate a vote. In fact, according to the testimony of a scholar on the filibuster, Sarah Binder, the rule was changed: “Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.” She further goes on to explain that, even then, Senators rarely filibustered before the Civil War. When they did start to filibuster, as Adam Jentleson—former staffer of then-Senate Majority Leader Harry Reid and author of the recently released book, Kill Switch, which details the modern history of the Senate—explains in a recent NPR interview, it was defenders of slavery, notably John C. Calhoun, who “innovated the filibuster for the specific purpose of empowering the planter class.” From this point forward, the filibuster was used to deny civil rights legislation, entrench legacies of slavery, and promote white supremacy.
Flash forward to the 117th U.S. Congress and the filibuster still threatens to do just that. In the Biden Administration’s first major push for landmark legislation—a progressive $1.9 trillion package that includes raising the minimum wage to $15 an hour—negotiations with Republicans were predictably a non-starter. With a supermajority out of reach, instead of attempting to axe the filibuster, Democrats have chosen to attempt to pass the bill through budget reconciliation, the same way Republicans passed the Tax Cuts and Jobs Acts in 2017. In this process, the Senate parliamentarian will rule whether the package fits specific rules to be passed through reconciliation, and the sections that do will be allowed to pass with a simple majority. As I write this article, it is unclear if this effort will be successful and only time will tell how strong of a COVID relief package may pass.
But even if reconciliation is a successful tactic in this instance, which it very well may be, it simply fails to fit the scope of President Biden’s vision for America. Continued reliance on it would create a scenario where issues in the Senate that could be passed under reconciliation—potentially including spending measures such as infrastructure and healthcare or tax increases on the rich—would take a front seat over other important issues, namely racial justice legislation. Former President Obama has notably called for the end of the filibuster in order to pass civil rights legislation, calling the rule a “Jim Crow relic.” This should include, at the bare minimum, the John Lewis Voting Rights Act, which Obama directly referenced. It should also include issues like D.C. statehood, which would create the only plurality-Black state in the country and enfranchise hundreds of thousand of Black voters but would have no chance of passing in a Senate that retains the filibuster.
Many argue that the filibuster will be useful if and when Republicans come back into power. However, as Ezra Klein, who has laid out an eloquent case for the end of the filibuster, points out: “In the absence of a supermajority Senate, parties will be able to pass more of the legislation they promise, and that will mean that partisans are more alarmed by the results when they lose power. But that’s how democracy is meant to work.” Make no mistake, abolishing the filibuster is not a fix-all solution to the un-democratic nature of the Senate. Nor does it promise to be an easy political task, with many Senators already indicating that they may be uncomfortable with it. However, it is a task that President Biden, veteran of the Senate, and Senate Majority Leader Chuck Schumer must undertake. The success of the project could mean the difference between a Biden Administration that produces four years of legislation moving towards the progressive direction this country needs, and one that sputters out after two years and fails to deliver on its major promises. In other words, it's a fight we have no choice but to win.