President Joe Biden said on the campaign trail that he doesn’t want to kill the filibuster. As president, that position hasn’t changed, at least publicly.
On Friday, White House press secretary Jen Psaki insisted Biden didn’t support repealing the rule requiring a 60-vote margin to move most bills through the Senate: “He has spoken to this many times. His position has not changed,” she said, according to the Washington Examiner.
In December 2019, Biden told The New York Times editorial board that “there’s a lot of things people agree on, though you don’t — there’s two things. One is that there are a number of areas where you can reach consensus that relate to things like cancer and health care and a whole range of things. I think we can reach consensus on that and get it passed without changing the filibuster rule.”
However, he added a caveat in July, by which time he was the presumptive party nominee. “It’s going to depend on how obstreperous [Republicans] become,” he told reporters on a phone call, according to The Times.
Well, wouldn’t you know it, when it comes to his first 100 days, Biden’s agenda bends more toward the “whole range of things” category than “things like cancer and health care.” They’re also things that will make Republicans — and potentially one Democrat — “obstreperous.”
Little wonder, then, that Biden doth protest too little when it comes to Senate Majority Leader Chuck Schumer’s of New York’s insistence that a power-sharing agreement with the GOP doesn’t include a provision protecting the filibuster.
According to Reuters, Schumer and Senate Majority Leader Mitch McConnell of Kentucky remain at odds regarding an organizing resolution for the upper chamber, with McConnell saying he wouldn’t agree to any deal without a promise from Democrats to keep the 60-vote supermajority rule.
“I cannot imagine the Democratic leader would rather hold up the power-sharing agreement than simply reaffirm that his side won’t be breaking this standing rule of the Senate,” McConnell said Thursday.
While Democrats are said to technically control the Senate, since Vice President Kamala Harris would be the tie-breaking vote, the body is still split 50-50, meaning Democrats have to enter into a power-sharing deal, since Harris cannot spend every day in the Senate to deal with tie-breakers. While Schumer has yet to explicitly come out in support of eliminating the filibuster, he’s previously made it clear that the option is not “off the table.”
Schumer told reporters on Thursday that he doesn’t want any “extraneous” provisions in the organizing rules and, on Friday, he called McConnell’s proposal “unacceptable.”
Schumer rejects McConnell proposal to affirm to spare the filibuster as part of power-sharing deal. “Leader McConnell’s proposal is unacceptable – and it won’t be accepted.”
— Manu Raju (@mkraju) January 22, 2021
Without the promise, Democrats could hypothetically be able to invoke the so-called “nuclear option,” meaning they could change Senate rules to pass most legislation with a simple majority. (Though all 50 Democratic senators plus Harris would need to be in agreement on invoking the nuclear option in the first place, assuming no Republicans wish to do so.)
Without a power-sharing agreement, however, committee assignments can’t be doled out and the keys to the new Senate won’t be fully in Democratic hands. And, as The Wall Street Journal noted, the organizing resolution that Schumer and McConnell are at odds over is “itself is subject to filibuster, so it will need at least 60 votes to advance without a bipartisan agreement.”
There’s also the Manchin issue. West Virginia Sen. Joe Manchin, the Senate’s most moderate Democrat, has said he wouldn’t be open to eliminating the filibuster, creating a problematic situation for the Democrats. However, he has said he backs Schumer in keeping the nuclear option on the table.
“Chuck has the right to do what he’s doing,” Manchin said this week. “He has the right to use that to leverage in whatever he wants to do.”
Democrats, too, have expressed impatience with the Republicans to just do what they want, goshdarnit.
“Things are on hold. I’ve got a lot of things I want to do,” said Democratic Sen. Dick Durbin of Illinois, the No. 2 Democrat in the body.
Sen. Brian Schatz of Hawaii, meanwhile, implied that since Democrats won the two runoffs in Georgia, it was time for the Republicans to fall in line.
“It’s an absolutely unprecedented, wacky, counterproductive request,” he tweeted. “We won the Senate. We get the gavels.”
McConnell is threatening to filibuster the Organizing Resolution which allows Democrats to assume the committee Chair positions. It’s an absolutely unprecedented, wacky, counterproductive request. We won the Senate. We get the gavels.
— Brian Schatz (@brianschatz) January 21, 2021
Say that last part in a Liam Neeson voice and it’s kind of funny.
The serious part, however, is that Schumer and his party likely aren’t just aiming to keep the nuclear option in reserve. Like all good Democrats, they’d almost certainly have to use it early and often.
On Biden’s first day in office, he announced a sweeping immigration bill that would allow illegal immigrants to apply for citizenship after an eight-year period. The bill would also, The Washington Post reported, allow those in the Deferred Action for Childhood Arrivals and Temporary Protected Status programs to apply for green cards immediately.
While the Equality Act might be pushed back further — Democratic sources told LGBTQ Nation they didn’t believe they had the votes to pass the bill yet — Biden had also pledged to make it a “first 100 days” priority on the campaign trail. That bill would treat sexual and gender “identity” as protected classes under the Civil Rights Act of 1964.
While this may sound very Kumbaya, The Heritage Foundation pointed out the unintended consequences this could have. It would force women’s shelters to allow men who identified as female to enter, put taxpayers on the line for gender-reassignment surgery for prison inmates, allow those prisoners to choose whether they belong in a men’s or women’s institution based on their “gender identity” and create a new round of uncertainty for business owners and nonprofits that refused to alter their religious convictions.
Neither of these falls under the aegis of “things like cancer and health care” and neither will garner 10 Republican votes to pass the filibuster threshold. Therefore, the end of the filibuster isn’t just a speculative thing.
And that would be just the beginning. Statehood for Washington, D.C., and Puerto Rico, admitted to the union in large part to give Democrats four seats in the Senate, would be an easy next step. It can be done on a straight party-line vote without the filibuster, after all.
There are serious problems with both, mind you. As Jim Geraghty pointed out in a piece in National Review before the election, it isn’t just that the District of Columbia is a city that lacks any commonality with the features of other states, like agriculture, manufacturing or even car dealerships. (It essentially has none of each.)
“Washington D.C. is a city that is particularly dependent upon the federal government to cover its operating expenses,” Geraghty wrote. “The federal government pays for the D.C. courts system, and since 2001 all D.C. prisoners are integrated into the federal Bureau of Prisons system. The city does not have a district attorney or state attorney general; the Office of the United States Attorney for the District of Columbia prosecutes all serious local crime committed by adults in the District of Columbia.
“If the District were to become a state, it would have a relationship with the federal government unlike any other, even beyond the factors above. Roughly 27 percent of all District residents work for the federal government, way more than any other state. Roughly 38 percent of all District residents work for government at some level.”
Meanwhile, though Puerto Rico resembles what we more traditionally think of as a state, the workplace counter that measures the number of years that the Caribbean possession has gone without a major political or debt-related crisis has reliably been stuck at “0” for quite some time now.
Last year’s mishap involved a citizen journalist discovering a mountain of unused supplies inside a warehouse that had originally been sent to the island during Hurricane Maria in 2017. That led to protests similar to those that toppled Gov. Ricardo Rosselló in 2019.
But again, four reliable Democratic votes.
As for your Second Amendment rights, those could be gone on a straight party-line vote, too. Biden has expressed his support for banning so-called “assault weapons” and “high-capacity magazines,” among other things.
Packing the Supreme Court or lower courts could be done on a party-line vote. All of these are hypothetical things — but then, when you see what Biden is willing to use his legislative bandwidth on in his first 100 days, we’re not stretching the imagination here, particularly given Manchin’s fecklessness on the matter.
After all, he’s picked agenda items bound to make Republicans “obstreperous.” And now that he’s been inaugurated, Psaki told reporters Thursday, he’s turning his attention to Congress.
“I expect he’ll be rolling up his sleeves and be quite involved,” Psaki said, according to The Wall Street Journal.
You can’t say he didn’t warn us.
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