A lot changes at noon today. The most recognized is that Joe Biden becomes President.  Also Kamala Harris becomes Vice President which means she becomes President of the Senate.  With the seating of both Jon Ossoff and Raphael Warnock of Georgia it gives the Democrats control of the upper chamber and makes Chuck Schumer the Majority Leader.   Mathematically at least that gives the Democrats the opportunity to make a needed rule change.  Let’s explore.  

Currently the Senate operates under a filibuster/cloture rule that effectively leaves almost all legislation subject to a 60 vote threshold for passage. (This is an oversimplification but I feel sufficient for today’s purposes.  Reputedly the best recent book on the matter is Kill Switch by Adam Jentleson.)  Senate confirmations up to and including Supreme Court justices require a simple majority.  (I’ll come back to that later.)

The filibuster is simply a Senate rule. It is not enshrined in the Constitution and was not called for by the Founding Fathers.  (As an aside I feel we would have had a better original Constitution if some “Founding Mothers” had been involved in particular Abigail Adams.)  Any Senate rule can be changed at any point in time by a simple majority of the Senators.  Therefore theoretically the Democrats can eliminate or amend the cloture rule at any time they so choose.

I see a logistical challenge in that Schumer would need to keep his entire caucus in line. It is unreasonable to expect any Republican defections so even a single “nay” vote from a Democrat kills the effort.  Politically if Schumer brought the proposal to the floor and then lost it would be a disaster.  This is a contest once entered you have to be certain you can win.

Based on past performance I expect Mitch McConnell as Minority Leader to obstruct Joe Biden’s agenda by liberal use of the filibuster. We have seen this movie before.  The only way to stop him is to take that tool away from him by changing the rule.

I have only recently become a proponent of eliminating the filibuster in the Senate. I was one of those traditionalists that realized that the Democrats will be in the minority again in the future – that is simply the way American politics operates.  The filibuster gives the minority “extra weight”.  On a polarized issue under a strict majority vote rules situation the minority does little more than occupy space.  The Senate quorum rule requires a majority of Senators (currently 51).  If the filibuster were eliminated and under the current 50-50 split the only “kill switch device” Mitch would have at his disposal would be to absent himself and his entire caucus.  That would be easier said than done; it is one thing to get your caucus to vote in lockstep – effectively striking is very different.  It’s tough to beat an incumbent by attacking an untaken vote; it’s much easier to use not showing up for work against them.

I love the Senate and have since I was a young boy. I can’t really explain why.  It is an inherently undemocratic institution.  The equal representation by state ignores population and favors less populous states.  It is a result of one of the many compromises in the original Constitution.  Eliminating the filibuster – which until relatively recently was mainly utilized by segregationists – would make the institution more democratic.  After all America was designed to be a representative democracy.

If a simple majority is deemed good enough to give a person a lifetime and basically irrevocable appointment to the Supreme Court why isn’t it good enough to pass legislation that can be amended or revoked at some future date?

There are several alternative proposals to simply eliminating the filibuster like a gradual downscaling of the supermajority vote level. Many have merit but any modification, if that is the route traveled, must result in a simple majority vote.  I am concerned that eliminating the filibuster will come back to bite progressive causes in the hind end somewhere down the road but we have to get there first.  If Mitch effectively controls all federal legislation with the simple goal of obstruction for political gain regardless of the consequences I’m not sure we will recognize the resulting America.

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