The Disappointing State of Play in the Senate

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The Brookings think tank has a page that explains the US Senate’s filibuster. This is a key section:

“Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered” [meaning the measure won’t be debated, voted on or adopted].

“While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate. Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.”

Unquote. The upshot is that senators cannot filibuster the two things Republicans most care about, appointing judges and cutting taxes (odd how that worked out). 

To avoid a Republican filibuster, the Democrats are trying to use the budget reconciliation process to pass Biden’s very important Build Back Better act by a simple majority (meaning 50 Democratic “yes” votes, followed by Vice President Harris voting “yes” to break the 50-50 tie). But one Democratic senator still won’t provide the 50th vote the Democrats need. 

They also want to pass voting rights legislation to protect what’s left of American democracy. They can’t use the budget reconciliation process for voting rights, so they need a different way to get around a Republican filibuster. The only way to do that is for the 50 Democrats (and VP Harris) to change Senate rules to make voting rights legislation an exception to the filibuster (in the same way judges and tax cuts are exceptions). But one or two Democratic senators still won’t provide the 49th and 50th vote the Democrats need. 

From today’s Crooked Media “What a Day” newsletter:

With Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) blocking passage of the Build Back Better Act, Senate Democrats have gamely pivoted to the voting-rights legislation also blocked by Manchin and Sinema. Get in, loser, we’re going nowhere in a different direction! 

  • Final negotiations on the reconciliation package appear to have ground to a halt, as Manchin’s objections to temporary programs (including the temporary child-tax-credit extension) and overall price tag thwart Senate Majority Leader Chuck Schumer’s plan to get it passed by Christmas. The final monthly payment authorized under the current expanded child tax credit went out on Wednesday; Congress would need to extend the program by December 28 to keep the payments on track in January. 
  • Anxious to get something done, some Senate Democrats have announced a new push to pass their elections bill, despite still needing unanimous agreement on changing filibuster rules to do so. Schumer said on Thursday that he hopes to get voting legislation passed “in time for the 2022 elections,” tacitly acknowledging that there’s no way a bill makes it to President Biden’s desk before the end of the year. 
  • On the one hand, Sen. Raphael Warnock (D-GA) made a terrific point on the Senate floor this week, after lawmakers approved a filibuster [exception] to raise the debt ceiling: “I believe that it is misplaced to change the Senate rules only for the benefit of the economy when the warning lights on our democracy are flashing at the same time. I happen to believe that our democracy is at least as important as the economy.” Hard to fault that logic!

On the other hand, there’s no indication that Manchin and Sinema have come around to the rule changes necessary to pass the bills they say they support. 

  • Manchin indicated on Tuesday that he’s still not open to reforming the filibuster to pass voting-rights legislation unless there are Republican votes to do so, to the gleeful cackles of Republicans everywhere. A Sinema spokesperson ruined everyone’s holidays by announcing Wednesday that she “continues to support the Senate’s 60-vote threshold,” though Democrats are discussing narrow filibuster reforms and not outright abolition, so it’s worth noting that Sinema’s office also called for “the Senate to publicly debate its rules, including the filibuster, so senators and all Americans can hear and fully consider such ideas, concerns, and consequences.” It’s not, like, a lot of hope, but at this point we’ll settle for vaguely hope-scented. 
  • Schumer may not have an obvious plan to get voting bills passed before the midterms, but he’s right to want to. Democrats may have owned themselves out of their House majority by refusing to gerrymander as aggressively as Republicans in the handful of states where they had the chance, in the absence of redistricting reforms. The decision of just five blue states—California, Colorado, New Jersey, Virginia, and Washington—to switch over to nonpartisan redistricting commissions will cost House Democrats 10-15 seats, according to trusted redistricting nerd Dave Wasserman. It’s entirely possible that Republicans will gain control with a smaller margin than that.

To quote Sen. Mazie Hirono (D-HI) this morning, “a 50-50 Senate sucks and we can’t get things done.” Rather than unconvincingly pretending otherwise until it’s time for another vacation, Senate Democrats might as well be clear about the fact that two of their members are abetting the GOP assault on democracy, and at some point make them go on the record about it.