Where Are the Filibusters?

Psst. Don’t tell anyone but the Senate is passing bills and Biden has been signing them.

During the course of Joe Biden’s first 100 days as president, the Senate was repeatedly described as “broken.” Also, during the course of Joe Biden’s first 100 days as president, the Senate passed 13 bills and filibustered zero. 10 of the 13 bills have been signed into law by President Biden, and the remaining three should soon follow suit.

Maybe the place still works.

Of course, those numbers don’t paint the entire picture. The biggest of the 13 bills, by about $2 trillion, is the American Rescue Plan which passed through budget reconciliation on a party-line vote and could not be filibustered. No other major priority of Biden’s has a clear path to passage because the mere existence of the filibuster power constrains the ability of the majority to act.

But Senate resistance to a president’s ambitions is hardly equivalent to Senate dysfunction, which is what many were expecting and, to be fair, not without reason. Back in March, political scientists Jacob Hacker and Paul Pierson explained in The Atlantic, “Why McConnell Gets Away With Filibustering,” which characterized the now-Senate Minority Leader’s strategy during the Obama presidency as complete and total obstruction at every point possible: “Everything that could be filibustered was — even routine and trivial matters, even bills and appointments that the Republicans ultimately planned to support.”

Whatever there is to say about Mitch McConnell’s soulless approach to politics, we cannot say that today he has organized his party to filibuster everything he can. In fact, McConnell has voted “Yea” on most of the 13 successful bills, including legislation to authorize $35 billion for water infrastructure, strengthen the Justice Department’s ability to prosecute hate crimes, extend a suspension of automatic Medicare cuts, extend the pandemic small business relief loan program and waive the law that would have prevented Lloyd Austin from becoming Defense Secretary. Neera Tanden’s nomination tanked, but no major presidential nomination has led to thermonuclear war.

While these bills are all minor, if Republicans were determined to make Biden’s life miserable, they wouldn’t cooperate at all. They would deny him his choice to lead the Pentagon. They would let lead flow from the tap. They would let anti-Asian hate crimes go unanswered. They would let seniors suffer Medicare cuts. They would let small businesses go under. And they would hypocritically blame Biden for all the dysfunction.

Democrats are understandably reluctant to give Republicans overt praise for helping pick some very low-hanging legislative fruit. After all, allowing Republicans to quickly gain credibility for being bipartisan makes it easier for Republicans to claim that Democrats are asking for too much when it comes to big game like infrastructure, climate, immigration, and gun control. Nevertheless, Democrats should not dismiss this Republican cooperation or lack of recalcitrance. It’s not proof that Republicans are committed to good governance, but it does mean Republicans don’t believe they can escape all blame for any unpopular obstruction. That should inform Democratic legislative strategy.

Hacker and Pierson picked up on a McConnell comment from 2011: “We worked very hard to keep our fingerprints off of these proposals. Because we thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”

The political scientists, in turn, concluded, “what mattered to [McConnell] was that Obama would take the blame. For Republicans, the filibuster was a win-win-win: It sharply reduced the range of issues that Democrats could advance; it ensured that even bills that got through were subject to withering attacks for months, dragging down public support; and it produced an atmosphere of gridlock and dysfunction for which Democrats would pay the price.” (emphasis original.)

McConnell may not have completely abandoned this line of thinking. But as he has not been applying it regularly, he may have concluded it won’t be as easy to make Democrats pay the price for gridlock under the Biden administration as it was under the Obama administration.

That may explain why Republicans aren’t launching filibusters, but why are Democrats avoiding filibusters? Why isn’t Senate Majority Leader Chuck Schumer bringing to the Senate floor all of the ambitious bills passed by the House and fighting the good fight?

Some Democrats had seemed eager to accelerate a partisan confrontation in hopes of building pressure for filibuster reform or abolition. As Senator Sheldon Whitehouse said in early March regarding voting rights legislation, “You bring it to the floor a few times and let them obstruct it. And you see what effect bad faith obstruction has on some of our members’ views about the filibuster.”

Then in late March, Schumer sketched out his legislative agenda in a letter to his colleagues. Regarding voting rights legislation and the Equality Act, which would expand LGBTQ rights, Schumer declared they “will receive full consideration in committee and eventually on the Senate floor.” And in an interview with The New York Times’ Ezra Klein published Friday, Schumer said the House bill requiring background checks for all gun purchases is also guaranteed a floor vote. Still, every kid who’s been promised a dog, or worker who’s been promised a promotion, knows a delay when they hear one.

Schumer didn’t commit to bringing those bills to the floor by any specific date because he is not in a rush. And on top of that, Schumer did not make a pledge for a Senate floor vote regarding several other progressive bills which have already cleared the House, including bills on labor rights, police reform, immigration reform, domestic violence, and Washington, DC statehood.

In a recent interview with Carl Hulse of The New York Times, Schumer sought to buy time before instigating any partisan confrontation, saying, “there’s a number of people in our caucus who believe strongly in bipartisanship and want us to try that. And that’s fair. And we will.” Then he added, “if and when it becomes clear that Republicans won’t join us in big, bold action, we will move in that direction.”

But what exactly “that direction” is remains unclear. On the same day Schumer laid out his legislative strategy in a letter to Democrats, Senator Joe Manchin laid out his, insisting that any voting rights bill must have bipartisan support. Soon after, he reiterated he wouldn’t “eliminate or weaken the filibuster.” The House labor rights bill lacks support from three Senate Democrats. DC statehood is short five Democrats. Manchin said he wouldn’t support the House gun background check bill. Forcing a cloture vote would likely, in many cases, spotlight the fact that Democrats lack the caucus unanimity to reach 50 votes, let alone a 60-vote filibuster-proof supermajority.

Coming up that short is more likely to demoralize Democrats than punish Republicans. This may explain why Schumer is delaying confrontation, not courting it.

Schumer’s calculation is parallel to McConnell’s. As McConnell appears worried Republicans would shoulder the blame for petty obstruction of small bills, Schumer appears worried Democrats would shoulder the blame for provoking filibusters on big bills.

If we can’t find some medium-sized bills acceptable to enough Democrats and Republicans, the filibusters may eventually come. But there’s cause for modest optimism since we crossed the 100-day mark and the Senate isn’t broken yet.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works —and how to make it work better. More than fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

YES, I'LL MAKE A DONATION

Bill Scher

Bill Scher is the host of the history podcast "When America Worked" and the co-host of bipartisan online show and podcast "The DMZ"