On Monday night Mitch McConnell caved, ceding his ability to have any say going forward on whether the filibuster lives or dies. He’s even putting it in writing, meaning he can’t just magically take it back. This means it’s solely up to Senate Democrats to decide what to do about the filibuster.
There are a couple Senate Democrats from moderate-to-conservative states who would very much like to not have to completely eliminate the filibuster, because they don’t want it used against them by their Republican opponent when they seek reelection. So they’d rather just chip away at the filibuster as they go. Any time a Republican Senator threatens to filibuster a certain piece of legislation, Senate Democrats can just make that specific kind of legislation exempt from the filibuster. The Democrats can also use reconciliation to pass just about anything with 50 votes.
The filibuster should be eliminated. As Pennsylvania State Rep. Malcolm Kenyatta pointed out, the filibuster “has been used repeatedly to block civil rights legislation.” We can’t allow someone as deranged as Ted Cruz, for instance, to single handedly subvert the will of the people by overruling the majority of the Senators.
But in the short term, the fate of the filibuster won’t dictate much about whether Senate Democrats can pass legislation. You know I spent four years saying pardons weren’t a magic wand for Trump, and then they turned out not to be a magic wand for him? Killing the filibuster isn’t a magic wand for Senate Democrats either. Continually threatening to kill it can be 100% as effective as killing it.
We’ll see where this goes, but let’s not do the fatalistic “all hope is lost” thing if the filibuster doesn’t immediately die. If Senate Democrats have indeed maneuvered their way into a position where the Republicans are afraid to use the filibuster, then the Democrats will get everything they want. And if the Republicans do try to use the filibuster, the Democrats can go more nuclear as they go. The filibuster should die. But our success in the Senate won’t be about whether we kill the filibuster. It’ll be about whether our legislation gets passed into law.
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