Democrats pressuring Sen. Kyrsten Sinema (D-Ariz.) to abandon her defense of the filibuster say there’s little evidence to support her recent argument that getting rid of it would be an invitation for partisan seesawing on major legislation.
ObamaCare has endured the test of time, the Democrats note. And while there might be some nibbling on former President Trump’s tax-cut law without a filibuster and Democrats in control of the White House and Congress, large portions of the law are considered safe.
Such lasting legislative victories suggest Sinema is wrong, the Democrats say, when she argues that ending the procedural Senate rule would prevent Republicans or Democrats from passing laws that have proven to be durable.
“Some of her arguments are less than rigorous,” said longtime Democratic strategist James Carville.
Sinema and Sen. Joe Manchin (D-W.Va.) are the main holdouts in the Senate Democratic caucus on ending the filibuster, and the Arizona centrist has been outspoken in defending her position.
In an opinion piece published in The Washington Post on Monday, Sinema said that reforming or removing the filibuster is not the way to deliver “lasting results.”
“My support for retaining the 60-vote threshold is not based on the importance of any particular policy. It is based on what is best for our democracy,” the first-term senator wrote. “The filibuster compels moderation and helps protect the country from wild swings between opposing policy poles.”
Even critics of Sinema acknowledge that legislation backed by members of both parties is sturdier than bills that become law through a one-party Congress and White House.
But they say her argument misses the fact that even in today’s hyperpartisan climate, legislation passed overwhelmingly by one party and signed into law by an aligned president have survived challenges once that party lost power.
Legislation, even when it is approved by a united House and Senate, is sturdier than executive actions by a president that can be wiped away by a successor’s pen.
“Yes, she has a point, and yes, single-party bills are vulnerable,” said one Democratic operative and Clinton White House alum. “But big, important legislation has proven pretty durable.”
Republicans have tried multiple times to repeal the Affordable Care Act, signed into law by former President Obama at a time when Democrats had large majorities in the House and Senate.
Less than a year later, Democrats in the House had been routed and Republicans in the lower chamber had voted to repeal the law. That repeal bill went nowhere given the Democratic Senate — and Obama’s continued place in the White House.
Republicans had their best chance to repeal the Affordable Care Act in 2017 after then-President Trump’s election. The GOP had control of both chambers of Congress and the White House, and sought to end ObamaCare through budget reconciliation, which negated the filibuster.
But in the end, Republicans couldn’t get 50 votes in the Senate for their repeal bill.
The late Sen. John McCain (R), a fellow Arizonan whom Sinema has called her “personal hero,” turned his thumb down in casting the decisive vote against the measure, as then-Senate Majority Leader Mitch McConnell (R-Ky.) looked on. McCain was joined by GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska).
Another factor that came into place with the ObamaCare vote is that the law was more popular in 2017 than it was in 2011.
“Yes, there’s always the potential for a downside if you eliminate the filibuster,” said Jim Manley, a Democratic Senate veteran for more than two decades. But he added that it hasn’t proven true with Obama’s signature policy.
“The fact of the matter is it was widely popular,” Manley said. “Republicans never had the votes to eliminate it.”
Another major policy concentration, Trump’s 2017 tax breaks, infuriated progressive and even some moderate Democrats. But the White House has so far shown little desire to repeal the cuts completely. GOP senators have said they will refuse to come to the table on infrastructure talks if the tax cuts are undone, and the Biden administration has been willing to compromise.
“It’s absolutely a red line for Republicans,” Manley said. “For Democrats who want to get things done, they know if they go down that path, they’re destined to lose.”
“The 2017 tax cuts show that there won’t necessarily be wild swings in policy if the filibuster goes away,” he added.
It’s certainly possible that bills passed by a Democratic Congress and signed into law by President Biden could be overturned by a future Republican Congress and GOP president. But it would be at least 2025 before such a situation would arise, and it’s impossible to know what the politics of four years from now will be.
A spokesperson for Sinema did not respond to repeated requests for comment on her thought process in writing the op-ed.
The Arizona senator has made it clear, however, that she sees bipartisanship as the best way forward for prospective legislation.
After an infrastructure deal between Democrats and Republicans was announced on Thursday, Sinema applauded the rare example of working across the aisle.
“Folks around D.C. and around the nation will lament and say that bipartisanship is a thing that’s gone past. And you all have heard for weeks now people saying that a bipartisan agreement couldn’t happen,” she told reporters.