How Democrats Learned to Stop Worrying and Love Nuking the Filibuster

By Andy Kroll, Rolling Stone

16 May 21

There are risks in changing the rules of the Senate, but the party is realizing there’s more danger in allowing McConnell to veto most of their agenda

arbara Boxer will be the first to tell you how much she loved the filibuster. Boxer, a California Democrat, won her first election to the U.S. Senate in 1992. Two years later, the so-called Republican Revolution swept into Washington, D.C. Soon, Boxer and her fellow Senate Democrats found themselves beating back one retrograde bill after another, sent their way from the Republican-controlled House of Representatives and its new speaker, Newt Gingrich.

Boxer remembers one deregulatory bill that would have undermined standards for mammograms. Women’s health was a priority for her, and she and the other female senators “filibustered that bill till the cows came home,” as she told me recently. “We beat back that whole thing.” In those days, Boxer says, the filibuster was an essential tool for Democrats to slow down or stop the hardline conservative policies churned out by the House. Without it, she feared, the Gingrich-led Republican Party would try to criminalize abortion, repeal the Clean Air Act, or gut the Voting Rights Act. “There’s nothing that would be sacred to them,” she remembers thinking.

But when I spoke with Boxer earlier this year, she told me her views had changed. Now, she wants the filibuster gone, tossed into the dustbin of history. Where she once believed that Republicans would shred everything short of the Bill of Rights if it weren’t for the filibuster, she now sees it as an impediment to a working Senate and a functioning democracy. For her, the scales had tipped toward ending the filibuster. “It’s turned into a total disaster,” she says. “It’s time to change it and we should not be hesitant.”

Boxer retired in 2016 after four terms in the Senate, and it’s easy for her to campaign against the filibuster from the comfort of her post-politics life. But Boxer’s path from stalwart defender to fierce opponent of the filibuster mirrors a larger shift in the Democratic Party. For a variety of reasons, more and more Democrats are reaching the same conclusion Boxer has: that the need to preserve the filibuster as a check on future Republican majorities is outweighed by the danger of leaving it in place and failing to act on urgent crises like climate change, gun violence, and democratic reform.

This change of heart happened fast. Four years ago, 29 Democrats signed a letter along with dozens of their Republican colleagues that urged the Senate leadership to preserve the 60-vote requirement on most types of legislation. Not only did red-state Democrats sign that letter but progressives did too, including senators Kamala Harris, Cory Booker, and Kirsten Gillibrand. And as the 2020 presidential race got underway, Democratic candidates competing for the party’s most liberal voters balked at ending the filibuster. “I will personally resist efforts to get rid of it,” Booker said. Sen. Bernie Sanders (I-Vt.) said he was “not crazy about getting rid of the filibuster.”

But by the start of this year, Harris, Booker, Sanders, and Gillibrand had all changed their tune and come out in support of reforming or ending the filibuster. Of the 50 Senate Democrats, 45 of them are on the record either supporting reform or abolition or expressing openness to the idea. Two Democrats, Manchin and Kyrsten Sinema of Arizona, are opposed, and three haven’t said one way or the other. Even President Joe Biden, who had resisted filibuster reform as late as February 2020, now says the filibuster was “being abused in a gigantic way.” He said he supported modest reforms, but if those didn’t get the Senate moving again, “if there’s complete lockdown and chaos as a consequence of the filibuster, then we’ll have to go beyond what I’m talking about.”

What changed? Why have so many Democrats endorsed filibuster reform? And, most importantly, what will it take to get the rest of them onboard with actual changes?

Jeff Merkley remembers what the Senate used to be like. It was 1976, and Merkley was interning for then-Sen. Mark Hatfield, a moderate Republican from Oregon. There were no cell phones and no email in those days, and the action moved fast on the Senate floor from amendment to amendment, bill to bill. Hatfield tasked Merkley with tracking the activity on the floor for a key tax bill, and it was Merkley’s job to intercept Hatfield on the way to the Senate floor to brief his boss on the bill’s latest developments.

Merkley says he can’t remember ever seeing a cloture motion, the procedural move needed to end a filibuster. Instead, he watched as senators competed with one another to introduce their amendments, stump for their bills, and lobby their colleagues on how to vote. “I watched the Senate function,” Merkley told me recently. “The Senate worked.”

In 2008, Merkley got elected to the Senate himself after a decade in the Oregon legislature. Within a few years, he no longer recognized the chamber that was once sacred to him, and the filibuster played a big part in that. Lyndon Johnson faced two cloture votes in his six years as majority leader; Harry Reid, the Democratic leader from 2009 to 2015, had more than 100. “I was just shocked when I came back as a senator, and I was especially shocked by the amount of cloture motions,” Merkley says.

Merkley, who belongs to the Democratic Party’s progressive wing, had served in the Senate for only two years when he made his first effort to change the filibuster in 2011. He called for reviving the so-called talking filibuster, requiring that any senator stand on the floor and speak for the entirety of their filibuster. (As the rules stand, senators can obstruct a bill by merely notifying their colleagues of their intention to do so.) Merkley’s proposal got 46 votes — well short of the two-thirds majority needed on that vote. “Senators have silently blocked legislation from being debated and have stood in the way of the American people’s agenda without needing to explain themselves,” he said afterward. “While I’m disappointed that stronger rules reforms did not pass today, we have come a long way in a very short time.”

In 2013, Senate Democrats took a small step in the direction of filibuster reform. Faced with lockstep Republican obstruction to President Obama’s nominees and policy agenda, then-Majority Leader Harry Reid invoked the so-called nuclear option and eliminated the 60-vote requirement for most presidential nominees, making a simple majority the new rule. But Democrats made full use of the filibuster after Republicans won back the Senate in 2014 and Donald Trump won the 2016 presidential race. Their filibuster of Trump’s first Supreme Court nominee, Neil Gorsuch, led to Majority Leader Mitch McConnell changing the rules again so that Supreme Court nominees needed 51 votes for confirmation. And Democrats used the filibuster under Trump to block Republican legislation on policing reform, abortion funding, and sanctuary cities.

Yet now that they’re back in power, Democrats are poised to make deep changes to the century-old tool. In interviews this spring, I asked Merkley and other Senate Democrats to explain why there was so much support again for filibuster reform. Why were once skeptical Democrats coming around? Was it merely a political calculation, stripping away the filibuster to pass more bills, or was there more to it?

Some Democrats were only now learning the true history of the filibuster’s origins, Merkley told me. The filibuster was nowhere in the Constitution, and in fact some of the Founders had worried about the minority having veto power over the will of the majority, the very problem created by the modern use and abuse of the filibuster.

At a moment of reckoning for racial justice in America, senators were also being reminded of the filibuster’s racist legacy and how segregationists employed it to stop progress on civil rights for black Americans. White senators filibustered a 1922 anti-lynching bill until it was defeated. They tried to stop the Civil Rights Act of 1964 by filibustering it for 60 working days though they ultimately failed. Fifteen of the 30 measures defeated via filibuster in the Senate between 1917 and 1994 pertained to civil rights, according to congressional expert Sarah Binder.

The racist legacy of the filibuster was brought into starker relief, Merkley told me, when the voters of Georgia, a state with a long history of segregationist policies and a front line in the Civil Rights Movement, elected Jon Ossoff and Raphael Warnock in January and gave Democrats their slim 50-vote majority. “The grassroots that worked so hard to elect so many of us, and pulled off an absolute miracle in Georgia, won’t accept the excuse of Mitch McConnell blocking the agenda,” Merkley says.

In interviews with other senators and outside experts, the experiences of recent history loomed just as large as the distant past in their changing views of the filibuster. Democrats remember how Mitch McConnell deployed the filibuster over and over again to clog up the calendar and block key parts of Barack Obama’s agenda, all of this in service of McConnell’s mission to make Obama a one-term president.

They also remember how vehemently he and other Senate Republicans opposed Harry Reid’s 2013 reform of the filibuster. Sen. Bob Casey (D-Pa.) told me in a recent interview that he bumped into an irate Sen. John McCain in a Senate elevator after Democrats changed the filibuster in 2013 for judicial nominees. Casey says he remembers some Republicans at the time hinting that they were so appalled with what the Democrats had done that they would undo that change to the filibuster once they got back into power, so deep was their opposition to any changes to the Senate’s rules. “Well, I didn’t hear a word about it once they got the majority and the presidency,” Casey told me. Indeed, McConnell would go on to make his own changes to the filibuster in 2017 to ensure that President Trump’s Supreme Court nominees won confirmation.

Over the years, McConnell has defended the filibuster on the basis of precedent and defense of the institution of the Senate. The filibuster, he contends, is part of what makes the Senate a singular institution in the world. “Both sides have understood there are no permanent majorities in American politics, so a system that gives both sides a voice benefits everyone in the long run,” he said in March. But over time, Democrats have come to see McConnell’s motive for defending the filibuster as having less to do with lofty ideals about tradition and more to do with getting power and keeping it. “The idea that he would never change the [filibuster] rule if we didn’t, I just don’t buy that logic,” Casey told me. “I don’t think that’s the way he operates. He seems to have one philosophy: I win.”

Sen. Jeff Merkley argues that the filibuster as it exists today is effectively eliminated for the modern GOP’s top priorities, namely tax cuts and federal judges. (Only 51 votes are needed to pass major budgetary and fiscal bills that increase or decrease government or change the tax codes.) “What we have is a Senate without a filibuster for Republican priorities and the filibuster for Democratic policies,” he says. “It’s completely unacceptable for all of those who worked so hard to get us elected that we don’t have the same willingness to get our priorities done for the people.”

Talk to enough Senate Democrats about the filibuster, and the trajectory of the next 18 months shapes their thinking as much as does history, recent and distant.

Bob Casey was one of the 30 Democrats who signed that 2017 letter in favor of the Senate’s 60-vote threshold. Casey hails from a political dynasty in Pennsylvania — his father served as governor — and he’s considered to be a member of the Democratic Party’s moderate faction, which befits his staid disposition.

Earlier this year, Casey announced to the Philadelphia Inquirer that he’d had a change of heart about the filibuster. When I spoke with him in mid-April, he spoke candidly about his thinking. He’d put his name on that 2017 letter for the same reason other Democrats had, he said: He feared what Trump and McConnell would do needing only 51 votes to pass legislation. Casey told me he wished there was more bipartisanship and compromise in the Senate, but he believed the abuse of the filibuster and the extremism of a Republican Party captive to Donald Trump made deal-making and compromise almost impossible. He struck a mournful tone talking about the Senate itself. “Part of what you learn in the Senate is that it is, or at least was, a unique legislative body,” Casey told me. “I think there’s very little of that left. There might be some remnants. I just don’t think it’s the case any longer.”

At the same time, Casey said, the magnitude of the problems facing the country was immense. Voting rights, gun safety, climate solutions — all were issues that needed 60 votes to pass, all had faced Republicans filibusters in the past, and all would likely come up against Republican filibusters again. “I don’t know how you can justify saying we needed to get something on voting rights, or on climate change because we’re almost out of time and human life is at stake, but we couldn’t do it because of a rule,” he says. “It’s pretty hard to explain to voters, and even harder to one and two generations from now, that we couldn’t act on something that is that urgent.”

But didn’t Democrats want the filibuster intact for whenever Republicans got the majority again or won back the presidency? I put this question to several senators. Sen. Alex Padilla (D-Calif.), who is in his first term, told me that what Republicans might do in control of a filibuster-free Senate still paled in comparison to leaving it in place and not addressing climate change, say, or gun violence. “That’s a chance I’m willing to take,” Padilla says. “It’s not like we don’t know what to do on climate — the blueprint is there. But the filibuster keeps it from happening.”

The other calculation Democrats are making about the next year and a half is whether the policies that pass help them win reelection and hold power, as well as the possibility that if they lost power Republicans would change the filibuster themselves. Adam Jentleson, the former aide to Harry Reid, argues that ending the filibuster would allow Democrats to pass a version of the For the People Act, a package of democracy-focused reforms intended to expand access to the ballot box, make political spending more transparent, and curtail the ability of millionaires and billionaires to convert financial capital into political influence. He argues it’s riskier to leave the filibuster in place, deny Democrats the ability to legislate, then hope Republicans don’t eliminate the filibuster themselves in the future. “You’re helping Republicans get back to power faster and you’re crossing your fingers and hoping they don’t get rid of the filibuster themselves when they’re back in power,” he says.

The momentum in the Democratic Party may be in favor of filibuster reform, but there remain plenty of skeptics who fear the consequences, foreseen and not, in the years afterward. Chris Kofinis, a former chief of staff to Sen. Joe Manchin, says a filibuster-less Senate will turn the institution into something more like the House, whipsawing back and forth depending on which party is in the majority. If a Democratic Senate expanded workers’ rights and labor-union protections, the Republicans would respond by passing a national right-to-work law as soon as they took control again. “It’ll be vengeance on steroids,” Kofinis told me. “They’re going to roll back everything you just did. That’s not how you govern. That’s how you create chaos.”

Kofinis’ old boss, Joe Manchin, one of the last red-state Democrats, is probably the biggest obstacle to Democrats finding 50 votes for filibuster reform. Where Manchin stands isn’t entirely clear. He hinted earlier this year he could support the return of the talking filibuster. But soon afterward, he published an op-ed saying that under “no circumstances” would he change or eliminate the filibuster. A spokesman for Sen. Kyrsten Sinema (D-Ariz.) said in January that Sinema was “against eliminating the filibuster, and she is not open to changing her mind about eliminating the filibuster.”

Sen. Jeff Merkley says there are other paths to filibuster reform that stop short of ending it. The talking filibuster is one option. The Senate could also agree to a new rule that carves out certain types of legislation — voting rights, say — from the 60-vote requirement. Sen. Amy Klobuchar (D-Minn.), who chairs the influential Rules Committee, recently said she supported such a move. “We have a raw exercise of political power going on where people are making it harder to vote and you just can’t let that happen in a democracy because of some old rules in the Senate,” she told Mother Jones.

As of mid-April, Sen. Bob Casey told me he didn’t think Democrats had the votes to enact any of these changes. But it may be a matter of timing. Republicans have yet to put the filibuster to use since Joe Biden took office. If and when McConnell and his charges begin to block legislation like the For the People Act or the George Floyd Justice in Policing Act, support among Senate Democrats for addressing the filibuster is likely to grow, senators and outside advisers say.

Harry Reid, the former Democratic majority leader, told me it was important that Democrats like Joe Manchin who represent in competitive states be given a chance to negotiate with Republicans. They need to show their constituents, Reid says, that they’re trying to forge compromise. “But I think Joe will come to the conclusion,” Reid adds, “that if Republicans continue to negotiate in bad faith and remain unserious in terms of getting things, Democrats are going to have to act without Republicans.”

In the end, Reid says he believes the filibuster’s days are numbered. “It’s going to go away,” he told me. “It’s only a question of when.”