Sen. Kyrsten Sinema’s (I-Ariz.) decision not to seek reelection dealt a major blow to proponents of the filibuster and increases the chances of Senate Democrats taking a second crack at doing away with it if they keep the chamber in November.
Sinema, along with Sen. Joe Manchin (D-W.Va.), had drawn the ire of progressives by refusing to weaken the 60-vote threshold in order to codify abortion or voting rights legislation — and both are retiring at the end of the year.
Underscoring that dynamic, Senate Minority Leader Mitch McConnell (R-Ky.) issued a statement Wednesday that lauded Sinema for backing the filibuster.
“She, in many respects, gets MVP for saving the filibuster,” said Sen. Thom Tillis (R-N.C.), who has worked closely with Sinema in recent years on a number of bipartisan items. “She believes so much in the institution.”
Sinema’s impending departure and the possibility of Democrats replacing her with Rep. Ruben Gallego (D-Ariz.), whom the party has coalesced around following her announcement, has given them a shot at being able to cobble together the requisite 50 members to alter the filibuster if everything breaks right for them in November.
That includes Senate Democratic incumbents winning reelection and party nominees in open seats pulling off victory. And because senators wouldn’t change the filibuster rule without knowing that any bills advanced under it could become law, it would include flipping the House and securing a second term for Biden.
The combination would constitute an inside straight that could be difficult to pull off, but the possibility has some Democrats ready to pounce if they get the opportunity.
“Absolutely. We can, we should and we must take another run at reforming the filibuster because it is so anti-democratic,” said Sen. Richard Blumenthal (D-Conn.).
Senate Majority Leader Chuck Schumer (D-N.Y.) acknowledged as much on Wednesday, saying that Democrats have an “obligation to do everything we can” on some legislative issues, noting voting rights specifically. That was the issue that initially drove Schumer and his colleagues to attempt to circumvent the 60-vote threshold.
Sinema is not the only loss for advocates of the filibuster. McConnell, who has advocated for keeping it in place, announced that his time as leader will end this year, though the two Republicans vying to succeed him — Sens. John Thune (S.D.) and John Cornyn (Texas) — have both committed to keeping the rule in place.
“Despite our other differences, [Sinema and Manchin] have really done a tremendous service to this institution and the country by making sure that the Senate can be a place for debate and deliberation rather than just another version of the House,” Cornyn told the Hill.
That stance could come into play next year if former President Trump returns to power. Trump called for Senate Republicans to ditch the filibuster throughout his first two years in office, when the party had full control of Congress. McConnell declined repeatedly.
Sinema and Manchin’s pending exit also puts the focus on other Democratic moderates running for reelection. Sen. Jon Tester (D-Mont.) is chief among them, and he has attempted to stake a middle ground on the issue by arguing a form of the talking filibuster could work in certain situations.
“I don’t mind going back to the days of ‘Mr. Smith Goes to Washington,’ where people have to sacrifice to do a filibuster,” he said, referring to the 1939 film and a time when senators would take to the floor and speak for hours about their objections. “But as far as wiping it off the map and doing away with it, I don’t want to be the House.”
The filibuster, a 60-vote threshold to end debate on a bill that in practice gives the minority party the power to block legislation, has been under increasing scrutiny in recent decades but has only been altered for judicial and executive branch nominees.
Former Senate Majority Leader Harry Reid (D-Nev.) invoked the “nuclear option” to reduce the threshold needed for non-Supreme Court judicial nominees from 60 to 51 votes. McConnell followed suit four years later and altered the rules for those tapped to serve on the Supreme Court.
The Kentucky Republican has also issued stark warnings against changing the legislative filibuster, declaring that a “completely scorched earth Senate” would be the result.
“This is an institution that requires unanimous consent to turn the lights on before noon, to proceed with a garden-variety floor speech, to dispense with the reading of a lengthy legislative text, to schedule committee business, to move even non-controversial nominees at anything besides a snail’s pace,” he said in 2021.
McConnell also rattled off a litany of issues the Democrats would deal with if the GOP had control of the White House and both congressional chambers, including the defunding of sanctuary cities and Planned Parenthood, new pro-life protections, right to work legislation and concealed carry laws, among other things.
The pendulum would swing both ways, “and it would swing hard,” he said at the time.
There are also questions over whether Democrats will even have the ability to do away with the 60-vote requisite. Sinema and Manchin had long been the body armor for some in the conference who were not overly enthused with the idea of watering down the rules, and the upcoming retirements will put the onus on them.
Manchin indicated that he believes there are still some who have been silent that will stand in the way.
“I hope they step in front,” he said. “I like to think that if we hadn’t been there and they knew they had us as cover, then if they used me that way, I’m happy with that as long as they step to the plate now. It’s their responsibility to protect this institution.”
“I think there’s more than what you think,” Manchin continued, adding that he believes there are potentially as many as five Senate Democrats in that group.
Others disagree. Sen. Tim Kaine (D-Va.) said that he is not aware of any Democrat who would fit that bill currently in the conference.
Republicans are taking Democrats at face value on the subject.
“That’s what they said,” Cornyn said. “And I believe them.”