Senate Majority Leader Chuck Schumer (D-NY) is yet again weighing his chances of entirely abolishing the filibuster should his party win the trifecta this year. The New York Democrat has held his seat for the last quarter century, and throughout that tenure, he has waffled back and forth on whether to protect or destroy this particular upper-chamber tradition – seemingly based entirely on which side of the majority he happens to be at the time. Well, Democrats currently hold a slim 51-vote majority, and Schumer made it clear this week that if Kamala Harris wins in November, Democrats maintain the Senate lead, and if they win even a razor-thin majority in the House, the filibuster is as good as dead.
Goodbye Filibuster, Hello Progressive Profusion
Schumer told Politico he was eyeing the end of the 60-vote rule for legislation in order to pass two voting rights bills, the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Both were introduced but stalled in the 117th Congress and again in the 118th. Should Democrats see the kind of win in November their distinguished colleague from New York looks forward to, these bills almost certainly won’t fail in 2025 – but that’s far from all he’s planning. Schumer later said Democrats would also consider using the rule change to “codify abortion rights” and pass major economic legislation.
Only two obstacles prevented Schumer from doing precisely this in 2022: Senators Joe Manchin of West Virginia and Arizona’s Kyrsten Sinema. Both were Democrats at the time but then left the party, and neither is seeking re-election this year, meaning they can be replaced. As Schumer put it: “We got it up to 48, but, of course, Sinema and Manchin voted no; that’s why we couldn’t change the rules. Well, they’re both gone.”
In Remembrance
“The bottom line is this,” Senator Schumer said way back in 2003. “We are defending the Constitution, we are saying there should be some balance.” He criticized Republicans for trying to bend the rules whenever they didn’t get their way. “What my colleagues have done is taken the result they want … and then come up with an argument that all of a sudden filibusters are bad,” he argued.
Yet, when his party held a slight majority in 2013, then-House Speaker Harry Reid of Nevada first detonated the so-called nuclear option. President Barack Obama’s nominees weren’t getting confirmed, so Reid nuked the filibuster for all confirmation votes except Supreme Court Justices. Schumer dutifully toed the party line along with the rest.
Fast forward a few years, when Donald Trump appointed Neil Gorsuch. Then-Senate Majority Leader Mitch McConnell (R-KY) pulled a Reid and removed the filibuster from his path. Schumer, who was all in for ending the filibuster to get his team’s picks confirmed, once again defended the rule vociferously.
Yet once again he flip-flopped when Democrats next held power. He helped his party push through progressive legislation under the budget reconciliation rule and fought to end the filibuster entirely in 2022 once it became clear that year’s version of the John Lewis Voting Rights Advancement Act wouldn’t have the requisite 60 votes in the Senate.
A Brave New World on the Horizon?
Schumer reportedly believes the party will lose Manchin’s West Virginia seat to a Republican. That seems likely; Manchin, now an independent, was the Mountain State’s lone Democrat in Congress. Both US representatives and the other senator are Republicans. The governor and all state executive offices are also red, and the West Virginia Senate and House of Delegates are ruled by Republicans 31-3 and 89-11, respectively. But Ruben Gallego, the Arizona Democrat looking to replace Kyrsten Sinema, “is for it,” as Schumer put it, leaving them with – assuming they can manage to not lose any others – 50 seats. Should Harris win the White House, that’s all they’ll need to kill the filibuster using Tim Walz as the tiebreaker. Should they also manage a slight majority in the House – or, for that matter, a tie and the speakership – there would be little to hold them back.
First, the plan is to tee up the voting bills in order to call the vote to end the filibuster once Republicans try to resist. Then, with that legislative safeguard out of the way – and, as a bonus, an end to voter ID and other election security measures – nationwide abortion access comes next, as does some progressive spending. This much we know, not speculate, because Schumer publicly declared it. But where does it stop?
Biden’s White House and congressional Democrats tried multiple times to pass a full-blown “Green New Deal.” They also tried to pass a new, even stricter federal assault weapons ban – this time without an expiration date – and universal background checks even for private sales. Both endeavors failed only because Senators Manchin and Sinema refused to help end the filibuster, and even with that resistance, Democrats managed to get some concessions in both climate spending and gun control. There’s absolutely no reason to expect these agendas – or any of the various measures Biden tried unilaterally to implement only to have the courts shut him down – wouldn’t be rushed through in the first year of a Democrat trifecta sans Manchin and Sinema. Another popular idea among Democrats: Make Puerto Rico and Washington, DC, states, granting Democrats more senators, representatives, and presidential electors.
But what about the Supreme Court – surely, at least some of this would be unconstitutional, right? Well, the Constitution leaves it up to Congress to determine how many justices make up the High Court – so the easy solution there is to increase the total to some arbitrary number high enough that any conservative or originalist voices are drowned out and let Kamala Harris fill the bench with the most compliant progressive judges she can find. Regardless of what the nation’s founding document actually says, if the Supreme Court rules a law constitutional, then, legally speaking, it is.
Yes, this all hinges on Democrats winning control of both houses of Congress and the presidency – a tall order, to be sure. But trifectas are hardly unheard of, and this is precisely what the Democratic leader of the Senate is hoping for. Even if they don’t pull it off in 2024, Schumer’s plan goes in the back pocket for the next time his party holds a trifecta. And if they ever manage to change voting laws, add states they control, and stack the Court, the next election – whatever the year – might not matter.
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