September 14, 2022

The Democrats’ Filibuster Scheme

Senate Democrats believe they can eliminate the filibuster in order to pass the bills they want to pass, and keep the filibuster to stop the bills they want to stop.

Vice President Kamala Harris appeared in a pre-taped interview on NBC’s “Meet the Press” last weekend. As is often the case with her interviews, Harris said a few awkward, ill-informed or downright odd things. For example, she claimed that the U.S.-Mexico border is “secure.” When asked if she was confident of that, Harris answered, “We have a secure border in that that is a priority for any nation, including ours and our administration.” It’s hard to figure out what that meant.

The most newsworthy thing Harris said concerned the state of the Senate filibuster. Democrats have been in control of the Senate since the 2020 election, but with a 50-50 tie, they do not control a majority of seats. Their margin of control is the vice president’s tiebreaking vote. But even to get to that point on a partisan measure, Democrats have to unite all 50 of their senators. That has been difficult when two centrist Democrats, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, sometimes declined to go along with their colleagues.

So a goal of Democrats in this November’s election — a dream scenario, actually — would be to win 52 seats. That way, even if Manchin and Sinema defected, there would still be 50 Democratic votes for a partisan measure, and Harris could cast the tiebreaking, winning vote.

Harris made the case on NBC, using abortion as the reason Democrats need a 52-seat majority. “We are looking at a midterm election in which so much is on the line,” she said. “Take, for example, the issue of choice. The United States Supreme Court, in the Dobbs decision, just took a constitutional right that had been recognized from the women of America, from the people of America. Well, how does that relate to the midterms? Our president has said he will not let the filibuster get in the way. If the Senate, through a majority vote, votes to pass the Women’s Health Protection Act, he will sign it into law. You know what that means in the midterms? We need to hold on to the Senate and get two more. And then we can put into law the protections of Roe v. Wade.”

In Harris’ scenario, Democrats first need to get 50 votes for codifying Roe without having to worry about Manchin or Sinema. Then, if they get the 50 votes on the bill, they need 50 votes to eliminate the filibuster, which, were it still in effect, would require 60 votes for passage. According to the plan, Democrats would eliminate the filibuster on a 50-plus-Harris vote, and then codify Roe on a 50-plus-Harris vote. And just like that, the filibuster would be gone, and abortion would be legalized across America.

Killing the legislative filibuster would be, of course, a dramatic move in the Senate. It would change the way the institution works. It would set off a war between the parties and make the Senate even more partisan than it is today. It would lead to the passage of ill-considered legislation. But it is what many Democrats want to do. And now the vice president has laid out the administration’s rationale for doing it: to cement the now-repealed Roe decision into law.

But it’s more complicated than that. “If Democrats get 52 Senate seats or more, [is] the legislative filibuster gone?” NBC’s Chuck Todd asked Harris. “Or just on this issue?” That is, do Democrats want to somehow eliminate the filibuster only for the purpose of codifying Roe, but keep it for other issues? As it turns out, Harris wants to eliminate the filibuster in order to codify Roe, but she also wants to eliminate the filibuster to pass two other high-priority Democratic bills grouped together under the heading of “voting rights”: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Both bills would nationalize elections and reshape the conduct of elections on terms favorable to Democratic candidates.

So when Todd asked, “just on this issue,” meaning abortion, Harris answered: “On this issue and on a very important issue in addition to that important issue, which is voting rights.” She then explained that President Joe Biden “has been very clear. He will sign into law, and not let the filibuster get in the way, the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act … So everything is on the line in these elections in just less than two months.”

That’s the plan: Democrats want to eliminate the filibuster for the purpose of passing three pieces of legislation: the Women’s Health Protection Act, the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Then Todd asked Harris: “Are you comfortable that this could end the legislative filibuster for good, probably, even if you only try to do it for two issues?” Harris quickly answered, “No, I’m not. No, I’m not. No.” When Todd asked whether Harris believes the filibuster “will be held in place on other issues,” Harris answered, “That is very likely, yes.”

Senate Democrats believe they can eliminate the filibuster in order to pass the bills they want to pass, and keep the filibuster to stop the bills they want to stop. It is, to put it bluntly, a crazy idea.

Yes, it’s possible Democrats could pull off a slick maneuver to pass only what they want right now. But do they not believe Republicans will do the same thing the next time they control the Senate? Control of the Senate has changed hands five times since 2000. Don’t Democrats know that will happen again? If it does, they will be in the minority. It might happen in a few weeks. In two years there could be a Republican Senate and White House.

The Senate is a place where what goes around comes around. If Democrats eliminate the legislative filibuster, even if they claim it is a limited elimination applying only to abortion and voting rights, Republicans will eliminate the filibuster to pass bills they’ve always wanted but that have zero Democratic support. Bills like a national right-to-work law, funding a border wall, making tax cuts permanent and much more. Had they respected the filibuster, Democrats could stop all that. If the filibuster is gone, they will have no power to do so.

Five years ago, on April 7, 2017, a group of 27 Senate Democrats, then in the minority, signed a letter defending the filibuster and urging that it not be eliminated. Then-Sen. Kamala Harris was one of those Democrats. Now, she is on the other side. If she gets her way, Democrats might notch a short-term victory but bring long-term disaster to the Senate.

This content originally appeared on the Washington Examiner at

(Byron York is chief political correspondent for The Washington Examiner. For a deeper dive into many of the topics Byron covers, listen to his podcast, The Byron York Show, available on the Ricochet Audio Network at and everywhere else podcasts are found.)

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