The US Senate filibuster: enemy of democracy?

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The Senate filibuster has once again proven to be too big of an obstacle for Democrats to overcome. Joe Biden’s plea to his party to end the Republican’s strongest legislative tool was rejected in January, with rebel Democrat Senators, Joe Manchin, and Kyrsten Sinema, ignoring the President’s request.

Biden was hoping to pass a combined piece of pro-democracy legislation, the Freedom to Vote: John R. Lewis Act, which the House of Representatives passed in 2021. However, with no Republican support, the President hoped that a moral argument, in the shadow of Martin Luther King Day and the first anniversary of the January 6th Capitol riots, would be enough to sway his entire party’s attitudes towards ending the filibuster to allow the legislation to pass despite no Republican support. He was wrong.

The combination of hyper-partisanship and the filibuster has made the Democrats’ goal of voting expansion almost impossible

Given the Democrats’ current control of Congress, including a 51-50 advantage in the Senate, thanks to Kamala Harris’s role as tiebreaker, some may judge it as an abject failure of the ruling party to be unable to pass legislation promoting democratic participation. Yet, due to a such a slim majority in the Senate, passing legislation is not a simple process. For example, not only must the Democrats secure at least 60 votes to pass much of their meaningful, non-fiscal legislation, which would be hard enough in the best of political circumstances, they must convince ten Republicans to side with them. 

Since the 2020 presidential election, which saw former President Donald Trump falsely cry foul about Biden’s victory, both parties have been driven further apart by hyper-partisanship. The ‘big lie’ lies at the centre of this were a contributing factor to the January 6th attack in 2021, as the theory continues to fuel legislative agendas at both the state and federal levels. The Democrats perceive the Republicans as the subverters of democracy, while the GOP sees itself as democracy’s protector from alleged fraud. 

The combination of hyper-partisanship and the filibuster has made the Democrats’ goal of voting expansion almost impossible. Therefore, Manchin and Sinema’s defence of the filibuster is potentially devastating to Biden’s legislative agenda. The filibuster, in its current state, allows the minority party to prevent the passing of legislation unless a 60-vote threshold for ‘cloture’ is reached. Those wishing to filibuster legislation simply must state they are doing so, unlike previous iterations where opponents were expected to talk continuously. This prevents the bill from being debated meaning it cannot be formally voted on. Thus, the filibuster is both a very effective and easy tool to deploy.

The professed goal of this unique mechanism is to promote compromise and debate, which arguably would produce better legislation and stop the ‘tyranny of the majority’. Yet, especially in the eyes of most Democratic elites, it is preventing the will of the people from being fulfilled. 

Biden will be very hopeful of securing Breyer’s replacement with little difficulty

It is highly unlikely that filibuster rules will be changed in respect to the passing of legislation such as this. This is not promising for the Democrats who face an immensely difficult, and likely sobering, midterm election cycle in November. Manchin and Sinema have remained firm on their perspective of the role of the filibuster since the start of Biden’s term in office, thus the Democrats should not hold out for a sudden change from either of them. The senators’ main defence, other than supporting bipartisanship, is their fear of a slippery slope, where changing the rules now would lead to Republican backlash when they likely take back the chamber. 

However, there is a recently emerged silver lining for Joe Biden: soon-to-retire Justice Stephen Breyer. Due to previous Republican amendments to filibuster rules around Supreme Court nominations, Biden will be very hopeful of securing Breyer’s replacement with little difficulty. This could be an important and historical moment for Joe Biden and the Court, as the President promised in his 2020 election campaign to nominate the first black female justice. With the Republicans lacking the ability to filibuster this particular issue, the process may be less divisive and fraught compared to the three previous Supreme Court nomination processes. Yet, the current 6-3 conservative majority on the court would not be altered, meaning legislative success is Biden’s greatest chance of fulfilling the Democrat vision.

Image: Mark Warner via Wikimedia Commons

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