Senate Democrats have a bare majority in the new Congress — 50 seats, plus Vice President Kamala Harris as the tiebreaker. It's the first time the party has had control of both houses of Congress and the presidency in a decade.
But the leader of the Senate Republicans, Mitch McConnell, is already plotting to throttle this government in the crib. He is demanding Democrats preserve his ability to block anything they propose with the Senate filibuster, so he can ruin the country and blame it on them, and he is gambling that moderate Democratic senators will be too scared to call his bluff. Democrats should tell McConnell to go pound sand, and nuke the filibuster right now.
To understand what McConnell is doing, a bit of background on Senate procedure is required. The Senate does not formally change its rules for each new Congress, since only a third of its members are up for re-election in any particular cycle. So in normal times, the body votes through a Simple Resolution detailing how the majority party will fill up the committees, select chairmen, and so on, and everything else remains the same.
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However, this time we have a tied Senate, meaning Vice President Harris gives Democrats control with her tie-breaking vote. In this circumstance — most recently for six months in 2001 — the Senate has passed a different Organizing Resolution to organize itself. This is a sort of power-sharing arrangement with different details given that there may be ties at the committee level and such.
Recall that the filibuster allows just 41 senators to block most legislation. Activists have begged Democrats to get rid of the filibuster after witnessing McConnell use it to shamelessly obstruct Democratic priorities and then immediately remove it as an obstacle to his own chief priority, confirming right-wing Supreme Court Justices. Yet so far a crucial segment of moderate Democratic senators have resisted, for reasons of "tradition," or worries it will force them to take difficult votes, or simple timidity. Now McConnell has broken yet another Senate norm by threatening to filibuster the Organizing Resolution unless Democrats agree to keep the legislative filibuster for the next two years. To the best of my knowledge, filibustering the initial organizational rule package in a new Congress has never happened before. (Incidentally, since the Senate will continue to operate under its current rules, that leaves Republicans in charge of the committees so long as it is not passed.)
If Democrats agree, given McConnell's history, he is virtually guaranteed to not allow any normal legislation through, and to drag out the confirmation of any appointee as long as possible. The only way to pass any law will be through the cumbersome and limited reconciliation process. Just as he did under President Obama, McConnell wants to throw sand in the gears of government, prevent Biden from accomplishing anything, blame Democrats for the resulting dysfunction, and take back full control of the Senate in two years.
The obvious solution here would be to call McConnell's bluff and simply get rid of the filibuster now. There is no reason why the Senate can't pass laws through majority vote, as virtually every other legislative body on Earth does. (Indeed, the Senate is already ridiculously biased towards a handful of small states even without the 60-vote requirement.) As Akhil Reed Amar argues at length in Duke Law Journal, it is both legal and constitutional for Democrats to invoke Rule 20, which outlines how questions of procedure are adjudicated, to amend the rules and delete the filibuster through a simple majority vote. Then they pass the Organizing Resolution with that same majority. The Senate rulebook, precedent, and the Constitution all agree that ultimately a Senate majority must be able to decide at any point how the body should be organized.
This is the so-called "nuclear option," and indeed happened in 2013 under then-Majority Leader Harry Reid (D-Nev.), when Democrats got rid of the filibuster for ordinary judicial nominations. It happened again under McConnell himself in 2017, when Republicans got rid of it for Supreme Court nominations. One should also note at this point that, contrary to the fake history of the filibuster as some time-honored Senate tradition, its creation was entirely accidental and, prior to McConnell establishing it as a routine occurrence, was mainly used by white supremacists to block civil rights legislation.
So far, even moderate Senate Democrats don't seem to be buying McConnell's gambit. They want to preserve at least the threat of nuking the filibuster as leverage for getting things passed. Yet many of them clearly still don't want to get rid of it altogether. But if they don't, the chance of passing almost any bill through normal order will be dead for the next two years. Count on it.
So in a way, it might be lucky that McConnell is forcing Democrats to face this choice right out of the gate. If they just rip off the band-aid, they can pass what laws they like and let the 2022 electorate judge them on that, rather than trying to beat Republicans in a game of blame avoidance. Let's give democracy a chance.
