The filibuster isn't a sacred piece of law rooted in the U.S Constitution. It isn't even a long-standing law. It happened as an accident when lawmakers wanted a way to cut off debate. Now Senate Minority Leader Mitch McConnell (R-KY) is reportedly fearful that the Democrats will kill the procedure, reported The Intelligencer.
Since McConnell took over control in 2010, the Senate has crawled to a near-halt, passing only Republican legislation. McConnell even bragged about it, calling himself the "Grim Reaper" of government.
With Democrats holding the Senate, House and White House, and a 7 million-vote mandate in the presidency, the party should be able to make good on its promises to voters.
"McConnell is so concerned that his own obstruction will drive Democrats to 'go nuclear,' he is threatening to paralyze the Senate until Chuck Schumer agrees to take filibuster elimination off the table," The Intelligencer noted.
However, "multiple members of Chuck Schumer's caucus have said they are committed to preserving the Senate's de facto 60-vote requirement on major legislation," the report said, specifically citing conservative Sen. Joe Manchin (D-WV).
"I commit to you tonight, and I commit to all of your viewers and everyone else that's watching … I will not vote to end the filibuster," he said on Fox News. Other Democrats appear to be taking him at his words, the report said.
But Manchin might not be the influencer that he thinks he is. While he may think he's the new power-player in the Senate as the swing Democrat, there are Republicans that Democratic leadership could make deals with. Whatever Manchin demands could be offered to those like Lisa Murkowski (R-AK) or Ron Johnson (R-WI), both of whom are up for reelection in 2022.
The Intelligencer explained, however, that they don't trust Manchin will make good on his pledge.
Politico reported that Democrats aren't looking to take what they think is the biggest tool they have. The problem is that the belief that the filibuster gives them an edge isn't true.
In his book, former deputy chief of staff to Sen. Harry Reid (D-NV), Adam Jentleson, explained that the filibuster is the reason the government is broken. Speaking to National Public Radio about his book, he explained that most Democrats want to get rid of the rule.
"The actual number of things that would have been blocked by Democrats if the filibuster had been in place under Trump are actually relatively low," he explained. "Most of what Republicans wanted to do, they were able to do through end runs around the filibuster that already exist in the Senate rules. Many of those paths don't address liberal priorities in the same way because liberals tend to want to do bigger things with government. Liberals primarily benefit from passing big legislation, expanding the safety net, expanding civil rights and those sorts of things. Most of those actions are only capable of being done through legislation. So it's much easier to benefit from the ability to block things if you're a conservative."
Jentleson's book, Kill Switch: The Rise Of The Modern Senate And The Crippling Of American Democracy,, argues that the Senate rules requiring debate and discussion are what they should be. It might be annoying for politicians who want a government to work like a remote control, but the branch was never supposed to be like that. Every politician should be forced to stand before the American voter and justify their votes because that's the way the Constitution intended it.
"It may take some time to develop the political will to do it," he explained. "Right now, there are a number of Democratic senators who are somewhat reluctant, but there aren't that many of them. I look at that and I see only a few votes that need to be worked on. The history of reform is paved with senators who swore they would never do it and then come around. It's a question of posture for the Biden administration. And they can try their approach, and hopefully bipartisan cooperation will be forthcoming. But if it's not, I think there will be a question of whether Democrats are willing to pursue reform in order to deliver the solutions that this country desperately needs or whether they're willing to basically give up and accept that nothing's going to get done."
Another option that isn't talked about as much as complete abolition is the "Mr. Smith rule." The way it works now, any member can say that they intend to filibuster and legislation is held up until a 60-vote majority approves the vote. If the rule is changed that requires the member to actually filibuster, in the way Jimmy Stewart did in the Frank Capra classic "Mr. Smith Goes to Washington," it might help eliminate many of the filibusters.
Both solutions would require senators to do what is intended, debate the legislation publicly and then vote on the legislation.