If you were to create one of those insufferable word frequency visualizations that demonstrated what words Joe Biden used during his 2020 presidential campaign, at the very center, in a huge font, would be “normalcy,” “unity” and “healing.” He was going to be a president for us all. He’d unite us. He’d bring us back to the good ol’ normal days when we never argued much about the president, whenever that was. He’d heal America from all those nasty tweets the other guy sent out.
Not a whole lot of that word cloud made it into Joe Biden’s first fusillade of legislation.
There was a $1.9 trillion COVID relief package that didn’t have a whole lot to do with COVID relief and would have included a $15 minimum wage if the Senate parliamentarian hadn’t stepped in. That, at least, was filibuster-proof because it was passed under budget reconciliation rules.
Then there was an immigration bill that would give amnesty to 11 million people here illegally.
There’s Biden’s proposed suite of gun-grabbing legislation, which would ban so-called assault weapons, institute universal background checks and strip gunmakers of immunity from lawsuits for legally produced and sold firearms.
There’s also a voting reform bill that would federalize election control in a manner favorable to the Democrats.
And that’s just what’s on the table now.
That’s not normalcy, nor is it conducive to uniting or healing. So, needless to say, those measures aren’t going to pass the 60-vote threshold needed to pass in the Senate under the filibuster. If a bill can’t get 60 votes for cloture, or the end of debate, then it can’t move to a vote.
In 2018, when his party didn’t control the Senate or the White House, then-Senate Minority Whip Dick Durbin of Illinois, a Democrat, said ending the filibuster “would be the end of the Senate as it was originally devised.”
On Monday, Durbin changed his tune.
In a tweet that accompanied a clip from a speech he gave, Durbin said the 60-vote supermajority “has a death grip on American democracy. It’s time we end its power to hold the Senate hostage.”
The filibuster has a death grip on American democracy. It’s time we end its power to hold the Senate hostage. pic.twitter.com/DGZduFqRic
— Senator Dick Durbin (@SenatorDurbin) March 15, 2021
Of course, it doesn’t hurt that Durbin is now the Senate majority whip, given that his party has a 50-50 split with a Democratic vice president as the tie-breaking vote.
Let’s first go back to Durbin’s comments in 2018, when the federal government shut down over a budgetary conflict where Republicans wanted money for the border wall and Democrats wanted “immigration reform.” At the time, the GOP controlled both houses of Congress and the Senate, so the nuclear option was very much in play — yet, the federal government remained shut down because the Democrats were filibustering any attempt to pass a budget.
Durbin appeared on ABC News’ “This Week with George Stephanopoulos,” where he was asked about the possibility of the nuclear option.
“Well, I can tell you that would be the end of the Senate as it was originally devised and created going back to our Founding Fathers,” Durbin told Stephanopoulos.
“We have to acknowledge our respect for the minority, and that is what the Senate tries to do in its composition and in its procedure.”
Durbin’s opinion had changed remarkably by late January when he appeared on NBC News’ “Meet the Press.”
“The American people want us to take action,” he said. “Action on this pandemic, action on this economy … And if this filibuster has now become so common in the Senate that we can’t act, that we just sit their helpless, shame on us. Of course, we should consider a change in the rule under those circumstances. But let’s see.”
Durbin: “Of course, we should consider a change in rule under those circumstances. But let’s see.” pic.twitter.com/gT0szU8ig4
— Meet the Press (@MeetThePress) January 24, 2021
By Monday, he’d apparently seen.
“The filibuster is still being misused by some senators to block legislation urgently needed and supported by strong majorities of the American people,” Durbin said in his speech.
“This is what hitting legislative rock bottom looks like. Today’s filibusters turned the world’s most deliberative body into one of the world’s most ineffectual bodies.”
To give Durbin the least amount of credit I can give him, he suggested that maybe the filibuster could be reformed.
“If a senator insists on blocking the will of the Senate, he should at least pay the minimal price of being present. No more phoning it in. If your principles are that important, stand up for them, speak your mind, hold the floor and show your resolve,” Durbin said.
I think someone has watched “Mr. Smith Goes to Washington” a few too many times and wants a situation where Rand Paul pulls a Jimmy Stewart and faints into a pile of letters. The kind of filibuster you saw there actually did happen, although not so dramatically.
In 1970, the Senate put into effect the “two-track” filibuster rule whereby a bill could be filibustered and put aside while other business was considered. Before then, when a bill was filibustered, all business had to come to a halt and the filibustering contingent had to hold the floor until the bill was withdrawn or cloture was called for.
“On the one hand, the two-track system strengthened the ability of the majority to withstand a filibuster by enabling it to conduct other business,” wrote John Dean, Richard Nixon’s former counsel. “On the other hand, it made it easier for the filibustering minority, which did not have to constantly hold the floor.”
However, I doubt this is what Durbin wants, either. In 1964, a small faction of Democrats held up the Civil Rights Act with a 60-day filibuster that lasted until enough votes were collected for cloture.
In other words, then, what he wants is the filibuster gone — and either way, he certainly doesn’t want what he said he wanted in 2018.
Durbin’s opinion might not matter much, considering two Democrats — Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona — have pledged to keep the filibuster in place.
In the meantime, Durbin should be careful what he wishes for. There was another Illinois senator in recent memory who did a similar flip-flop on the filibuster, this time on judicial nominees.
“What [the American people] don’t expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet,” then-Sen. Barack Obama said on the Senate floor in 2005, according to PolitiFact, when the Bush administration was considering invoking the nuclear option to deal with Democratic filibustering of judicial nominees.
In 2013, after Senate Majority Leader Harry Reid invoked the nuclear option because Republicans were filibustering then-President Obama’s judicial nominees, Obama had a different view.
“I support the step a majority of senators today took to change the way that Washington is doing business — more specifically, the way the Senate does business,” he said.
“What a majority of senators determined … is that they would restore the longstanding tradition of considering judicial and public service nominations on a more routine basis.”
One Trump administration, three confirmed Supreme Court justices and 226 confirmed federal judges later, one wonders if Obama might want to give Durbin some advice about buyer’s (and flip-flopper’s) remorse.
If all that normalcy, unity or healing piffle won’t convince Durbin, maybe that would.
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