Many Democrats have pressed to eliminate or modify the Senate filibuster, a term that generally refers to extended debate that delays a vote on a pending matter. (Cloture is a device to end debate.) Under current Senate rules, 60 votes are needed to end debate on most legislation. In a 50-50 Senate, that means one side needs at least 10 votes from the other party to advance a bill to a vote on final passage.
At the moment, a major change in the rules, such as reducing the number needed to end debate below 60, does not seem likely. A small but significant minority of Democrats has rejected that idea, and the only way the rules would change is if all 50 Democrats support the idea.
But that has not stopped some Democrats, such as Castro and various left-leaning experts, from claiming that, if given the chance, Senate Minority Leader Mitch McConnell (R-Ky.) would eliminate the filibuster in a heartbeat if he regained power.
But has McConnell ever indicated that he would do this?
Though a change in the filibuster rules might seem unlikely now, nothing is written in stone.
In 1975, when Joe Biden was in the Senate, the rules were changed so that cloture could be invoked with the support of 60 votes instead of two-thirds of the entire Senate (67 votes). While that in theory lowered the threshold for ending debate, separately a new system for tracking legislation instituted under then-Majority Leader Mike Mansfield actually made it easier to mount a filibuster because opponents no longer had to make sure they had enough senators available on the floor for votes.
“The effect of the tracking system is that a filibuster no longer ties up the business of the Senate,” wrote law professor Josh Chafetz of Cornell Law School in 2011. “Once a Senator announces an intention to filibuster a measure, the issue is simply kept on the back burner unless the majority can muster the sixty votes for cloture.”
Even so, that change did not immediately result in more filibusters. But over time — and both parties point fingers at each other for abusing the process — filibusters essentially became the norm, so that just about any bill requires at least 60 votes of support for passage.
The only exception was for budget bills under a process known as reconciliation. Over time, that has been stretched to include tax bills and just recently the coronavirus economic relief legislation pushed by Biden. Republicans in 2017 even tried to repeal the Affordable Care Act through reconciliation but could not get the necessary 50 votes for passage.
More recently, Democrats in 2013 eliminated the filibuster for all presidential, judicial and executive-branch nominations, except for Supreme Court appointees. Republicans had blocked votes for President Barack Obama’s nominees to the influential U.S. Court of Appeals for the District of Columbia, and his picks to lead the Defense Department, the National Labor Relations Board and the Consumer Financial Protection Bureau. Then, when Democrats in 2017 mounted a filibuster of President Donald Trump’s first Supreme Court nominee, Neil M. Gorsuch, McConnell moved to eliminate the filibuster for Supreme Court nominations. He argued it was a logical consequence of the action originally taken by Democrats — a move McConnell had fiercely opposed at the time when he was still in the minority.
Gorsuch was also the nominee who replaced Obama’s original Supreme Court pick, Merrick Garland, whom McConnell refused to consider on the grounds that it was an election year, a political maneuver that made the elimination of the filibuster for Supreme Court nominees especially grating to Democrats. In their view, McConnell had simply invented a nonexistent rule to keep a court seat open for a possible Republican president.
Castro argues that this record shows that McConnell would take a similar step if he ever ended up in the majority again. But that belies the fact that when McConnell was the majority leader, he never took that step even though Trump kept insisting, over and over, that Republicans needed to eliminate the filibuster on legislation.
Trump, like just about every new president who first encounters the filibuster rules, couldn’t believe that it was so hard to pass legislation in the Senate. “If Senate Republicans don’t get rid of the Filibuster Rule and go to a 51% majority, few bills will be passed,” Trump tweeted on Aug. 25, 2017. “8 Dems control the Senate!”
On Sept. 15, 2017, Trump tweeted: “With the ridiculous Filibuster Rule in the Senate, Republicans need 60 votes to pass legislation, rather than 51. Can’t get votes, END NOW!”
But McConnell held firm. “It would fundamentally change the way the Senate has worked for a very long time. We’re not going to do that,” he told reporters.
In 2018, McConnell estimated that two-thirds of Senate Republicans would oppose eliminating the legislative filibuster, even though they were in power. “I don’t think the legislative filibuster, which has been around for a long time, is a problem,” he told Politico. “And it does, I think, generate on many occasions kind of a bipartisan solution, and I don’t think that’s always bad for the country.”
Indeed, McConnell had consistently argued against changing the rules when he was in the minority — and then again when he was in the majority.
A “change in the rules aimed at benefiting the Democrats today could just as easily be used to benefit Republicans tomorrow. Do our friends across the aisle want to create a situation where two or four or six years from now they suddenly find themselves completely powerless to prevent Republicans from overturning legislation they themselves have worked so hard to enact, particularly over the last two years?” McConnell said on the floor in 2011. “Changing the rules in the way that has been proposed would unalterably change the Senate itself. It will no longer be the place where the whole country is heard and has the ability to have its say, a place that encourages consensus and broad agreement.”
And in 2012, he said: “The Senate has functioned for quite a number of decades without a simple-majority threshold for everything we do. It has a good effect because it brings people together. To do anything in the Senate, you have to have some bipartisan buy-in. My colleagues, do we really want the Senate to become the House? Is that really in the best interests of our country? Do we want a simple majority of 51 to ramrod the minority on every issue?”
After Democrats took control of the House, McConnell, in a 2019 New York Times opinion piece titled “The Filibuster Plays a Crucial Role in Our Constitutional Order,” said it might seem odd that the majority leader “opposes a proposal to increase his own power.” But, he argued, “my Republican colleagues and I have not and will not vandalize this core tradition for short-term gain. We recognize what everyone should recognize — there are no permanent victories in politics. No Republican has any trouble imagining the laundry list of socialist policies that 51 Senate Democrats would happily inflict on Middle America in a filibuster-free Senate.”
In recent days, McConnell has warned that if Democrats remove the filibuster, Republicans would unleash a right-wing agenda when they get back into power, such as “nationwide right-to-work for working Americans. Defunding Planned Parenthood and sanctuary cities on day one. A whole new era of domestic energy production. Sweeping new protections for conscience and the right to life of the unborn. Concealed-carry reciprocity in all 50 states and the District of Columbia. Massive hardening of security on our southern border.”
One wonders why McConnell did not take the opportunity to enact such an agenda by eliminating the filibuster when he had a chance. A cynic might suggest that McConnell is sitting in the catbird seat now. Two issues that especially animate him — taxes and judges — require only majority votes in the Senate. But the policy issues that animate Democrats — such as climate change and gun control — still require the elusive 60 votes to be enacted into law or end up in the legislative graveyard.
Alex Sarabia, spokesman for Castro, said McConnell cannot be trusted to stick to this position. “It’s indisputable that Senator McConnell already partially eliminated the filibuster when it suited him to advance his extreme right-wing agenda,” he said. “He’ll say anything to stop progress and do anything to advance his political interest, including changing the rules once again. Democrats should not stake the future of our democracy on Mitch McConnell’s promises.”
The Pinocchio Test
Castro made his point without any qualifiers, such as “I believe,” but we accept the argument by Castro’s staff that this is a matter of opinion. We try not to fact-check opinions and thus won’t offer any rating.
The factual record suggests McConnell has no interest in ditching the legislative filibuster and has been consistent in defending it. But we’re not in the business of predicting the future, either. Many politicians are known to change their minds when the opportunity suits them.
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