The Senate Isn’t Going to Give Up the Filibuster

Frustrated by the refusal of Senate Democrats to support a Continuing Resolution they had no role in drafting, President Trump recently waded into the convoluted realm of Senate rules to demand an end to the filibuster. A spokesperson for Sen John Thune (R-SD) quickly poured cold water on the idea, declaring that the majority leader’s position “on the importance of the legislative filibuster is unchanged.” No surprise there!

True, in 2013 and 2017, the filibuster for executive and judicial appointments was radically altered, once by Democrats and later by Republicans. And certain legislative items are exempted from the filibuster, most consequentially Reconciliation bills that, in the absence of regular authorization bills, often have been employed to make significant policy changes. But changing or eliminating the filibuster on legislative matters, as generations of reformers have advocated, well, that’s another matter. Don’t expect to see the proposal surface anytime soon on the Senate’s agenda.

It is widely believed that the Senate filibuster process is enshrined in the Constitution to protect the rights of the minority so easily bulldozed in the majoritarian-run House, to protect the smaller states and to guarantee free and full debate. Even senators can display ignorance of the origins of the parliamentary cudgel. “I’m not going to support a change,” Louisiana’s Sen. John Kennedy recent declared. “The Founding Fathers set it up this way.” In fact, it exists merely as a legacy of Senate precedent dating back to 1805, when Vice President Aaron Burr shrugged off the debate-ending “previous question” procedure used in the House.  

In fact, the Founding Fathers specifically rejected requiring supermajorities to pass legislation which, Alexander Hamilton (whom Burr had murdered the previous year) wrote, would “destroy the energy of the government” by keeping it in “a state of inaction.” Indeed, the persistence of the filibuster is one reason for the Senate’s role as “a legislative graveyard,” in the immortal words of Sen. Mitch McConnell (R-KY), bottling up dozens of bills each Congress that have been approved by the House.

Maintenance of the legislative filibuster has long been defended (by senators, of course) as essential to the nature of the Senate itself. “Filibusters are a necessary evil,” insisted former majority leader Robert C. Byrd (D-WV). “The good outweighs the bad … which must be tolerated lest the Senate lose its special strength and become a mere appendage of the House of Representatives.” (Byrd didn’t address whether he believed, due to the lack of a filibuster, he viewed the House as “a mere appendage to the Senate.”) Eliminating the tradition of unlimited debate would mean “there would also be no Senate as we know it.” In other words, a majority of senators would be needed to pass legislation, which is the standard not only on the South side of the U.S. Capitol but in parliamentary bodies around the world.

In its modern iteration, the idea that the filibuster ensures that all viewpoints will be considered is nonsense, according to scholars who have studied the maneuver. If, as filibuster proponents argue, “the purpose of the filibuster is to promote debate,” writes Sarah Binder of American University, “then use it actually to debate.” Instead, from the southern Democrats of the post-war era to block civil rights laws to the more modern Republican efforts to obstruct voting rights reforms, filibusters preclude consideration of often popular, bipartisan and long-overdue  legislation.

Why then do senators whose proposals are blocked from debate nevertheless refuse to eliminate the filibuster? The explanation is not partisan or ideological: it is institutional and strategic, and it has nothing to do with respecting the rights of the minority party to influence the debate.  

A chronic feature of the legislative jostling between the two houses of Congress is the Senate’s tactic of rejecting House-passed legislation, advising that it cannot secure the supermajority required to avoid a filibuster. Similarly, in negotiations with the White House, senators cite the filibuster threshold as leverage to bend the will of the president. Even within the Senate itself, each senator is empowered, knowing that so long as there is no easy route to 60 votes to invoke cloture, he or she has a unique arrow in the quiver to force concessions. House members and presidents are often informed, by suitably apologetic senators, that there is but one way to pass a bill.

Former House majority leader Steny Hoyer (D-MD) refers to this Senate strategy, which serves all senators and majority and minority alike, as the “my way or the highway” approach. The late Harry Reid (D-NV), when he served as majority leader, used to lament that he wished he could return to the House where a simple majority could assure the consideration of legislation. No, he didn’t! Reid was a master of employing Senate obstructionist opportunities to kill the Yucca Mountain nuclear waste facility in Nevada.

The Senate abandoned the filibuster for executive appointments and judges in 2013 and 2017, but there is a huge difference from its use in considering legislation. Only the Senate confirms these positions, so no leverage is lost with the House by dispensing with unlimited debate. Particularly when the Senate and president are of the same party, the absence of a cloture requirements serves to facilitate the appointment of like-minded judges, which is one reason ideological hard-liners have flooded the courts in recent years.

Trump understandably wishes the Senate Republican majority would abandon the filibuster that prevents him from getting his way, but that presidential frustration is not unique to the current occupant of the White House. And that is among the reasons that however much senators complain and promise to end the filibuster, the frustrating tradition is not likely going anywhere anytime soon.

The Democratic Fold … and What Comes Next

“This bill is not perfect,” Sen. Dick Durbin (D-IL) indisputably conceded concerning the Republican-drafted Continuing Resolution whose passage he and 7 other Democrats enabling in passing on Sunday. After the longest government shutdown on record, suddenly it appears there is light at the end of the tunnel.  Unfortunately, the light is an oncoming legislative locomotive certain to leave Democrats dispirited and divided.

Democrats were between the proverbial rock and a hard place: refusing to allow the Republicans’ CR to pass would turn the thumbnail screws ever more tightly on the poorest, the youngest and oldest, and disabled Americans; on those planning holiday travel; and on millions of federal workers who administer programs of vital importance.

If there was a miscalculation on the part of Democrats on how all this would go back on October 1^st, when the shutdown began, it was underestimating the eagerness of Trump and congressional Republicans to inflict cruelty on millions of Americans in their own states and districts. Throughout the shutdown, Trump radiated indifference, galivanting around the world, rattling nuclear weapons and hobnobbing with dictators while refusing to negotiate or even meet with Democrats. Congressional Republicans remained frozen in their unwillingness to utter any opinion at odds with their imperious leader.

Shutdowns are historically ineffective in forcing unwilling presidents or congressional majorities to reverse course, but they can help to elevate a key issue like the expiration of health care supports. Newt Gingrich’s shutdown in 1995, shortly after Republicans regained the congressional majority after 40 years, failed in its goal to repeal the Clinton tax increase, but it did establish the Republicans as the new power in town that must be dealt with, as Clinton did in embracing conservative welfare reforms and budget cuts.

Democrats may not be so fortunate in the current situation since there is only the faintest of chances that their rationale for withholding support for the CR – extending health care cost support – is unlikely to become law despite Republican promises to hold (but not necessarily to support) a December vote on an as-yet unknown piece of legislation. Perhaps some diluted version of existing subsidies will pass the Senate, but it is just as likely House Republicans will shelve any health bill the Senate might cobble together even though those receiving the benefits reside in Republican dominated states by a 2-1 margin. Or Republicans and Trump could substitute a much more extensive rewriting of the ACA that would do even more damage to its core protections than the expiration of the premium supports. Should that be the case, Democrats will be hard-pressed to insist that the shutdown extracted any great concession, especially since current law signed by Trump already requires furloughed workers to be paid.

Outraged Democrats are understandably castigating party leaders and members for capitulating, particularly because the party seemed to be standing on principle with uncommon unity and had just won significant victories in the recent election. But a procedural decision by Supreme Court Justice Ketanji Brown leaving in place a SNAP cutback, worrisome shortages of TSA and flight control personnel as holiday travel dates near, and real privation by millions of unpaid federal workers pointed to an unsustainable trajectory – one that was all but inevitable back in early October. Even so, entering the ring of the CR fight with fists up was crucial for Democrats, whose members doubted its elected officials had the stomach for battle.

Democrats do not have a lot of good cards to play, which is what comes from being in the minority. Framing the coming battle on the extension of health care is important; any cuts in current benefits must be blamed entirely on Republicans, who have still not abandoned their decade and a half effort to repeal or just destabilize the Affordable Care Act. But Democratic senators will face a dispiriting challenge on that front, too, since refusing to agree to whatever extension bill Republicans might put on the floor in January would mean the premium supports will simply expire altogether. And, of course, even if Senate Republicans, in a demonstration of unprecedented comity, write an extension bill with the involvement of Democrats, Speaker Mike Johnson (R-LA) is unlikely to schedule it up for an up-or-down vote on the House floor.

Shutdown, the Sequel is likely on tap for late January, when the newly negotiated CR will expire. Unless all of the appropriations bills are law by then, another CR will be required for any remaining bills, which are almost certain to include the always-controversial Labor-HHS measure that funds so many programs crucial to Democrats.  A second bent knee to the Republicans by Democrats in January would do irreparable damage to the engagement and enthusiasm of party faithful so buoyed by the victories of November 4. And yet the prospects for victory are likely no greater, especially if it is departments like HHS that remain unfunded and closed.

The hard fact is that the only real way to prevent these shutdowns is to dislodge Republicans from their strangling control of government next November. Only if Democrats are in control of at least one house of Congress does the party have a fighting chance of affecting the appropriations strategy, but – ironically — the party’s chances of sustaining the momentum to achieve that victory is likely in the hands of discouraged voters who are angry they remain largely powerless in the minority.

What the Off-Off Year Elections Tell Us

It was a good night for Democrats across the country, providing important victories that defied early predictions and conventional wisdom and pointed in some promising directions for 2026 and beyond.

Republicans got some clear messages as well, particularly concerning their electoral  weakness when Donald Trump is not on the ballot to bring out the faithful and lure wavering Democrats.

Turnout, except in New York City, where the youth vote fueled an historic election, was understandably down from 2024, and one should be careful about drawing too many conclusions about why those voters stayed home, not to mention how they might vote a year from now. A major question will be whether the massive youth support that propelled Zohran Mamdani into Gracie Mansion is sustainable into the off-year election. As with Obama in 2008 and Trump in 2016, new and infrequent voters flocked to the polls in New York, but political popularity is only minimally transferable; Democrats will have to select candidates who excite the under-30 voters and not simply depend on them to show up based on antipathy to Trump or newfound party loyalty.

Trump’s early responses were telling. He ascribed the GOP losses to his not being on the ballot to attract swing voters; in 2024, nearly every county in America moved towards Trump but that phenomenon was nowhere in sight on Tuesday. And he blamed Republicans (as do a majority of Americans) for a government shutdown that he has encouraged and done nothing to resolve. Throwing allies under the bus is nothing new for Trump; will some congressional Republicans reconsider their fealty to their ungrateful lame duck leader and strike out on their own? I doubt the Trump label has become that big a liability, especially in Republican primaries, but it obviously is no guarantee of success in a general election.

New Jersey is a good example of the turnaround from just a year earlier, when Trump made significant gains in a state generally considered to be reliably blue. Nowhere was that shift clearer than in Passaic County, long a bastion of Democratic strength but one that gave just 47% of its vote to Kamala Harris. On Tuesday, Mikie Sherrill won 57% in Passaic County. Then same trend was evident in other counties. In Bergen, Sherrill won 55% to Harris’ 50.7%; in Morris, she won 50.1% to Harris’ 46.7%; in Middlesex, her 62% performance was ten points above Harris. And even where she lost to Jack Ciattarelli, as in traditionally Hunterdon and Sussex counties, she improved by several points over  Harris’ performance.

These number indicate three important takeaways:

1. A Democrat who focuses on kitchen table issues, as did Sherrill (as well as Abigail Spanberger in Virginia and Mamdani in New York City) is hitting the economic sweet spot for swing voters.
2. Black, Hispanic and Asian voters who balked at voting for Harris swung back in droves, indicating 2024 might have been more one off than a trend, and who in any event feel betrayed by Trump’s inattention to the economic issues on which he largely won.
3. Republicans need to contemplate whether loyalty to Trump is increasingly a liability. New Jersey has had no problem electing Republicans and indeed has regularly done so following Democratic governorships for the last 60 years. But they have been moderate Republicans like Tom Kean and Christie Todd Whitman and even Chris Christie, all of whom now would more comfortably fit in the Democratic party than that of Donald Trump. Ciattarelli abandoned a more centrist stance that had characterized his earlier political career and went full MAGA at a time when masked ICE thugs marauding the streets have terrorized minority communities and soaring energy bills have undercut Trump’s assault on alternative energy.

Both parties, it could be said, could learn a lesson from Tuesday’s results, and it is hardly a state secret: swing elections – the ones that determine who gets to govern in the key matched races across the country – are won in the center, not on the fringe. Sherrill and Spanberger’s victories prove that to be the case. That is not to say Democrats need to abandon a commitment to some of the more divisive issues that divert attention and votes in toss-up races, but they cannot lead with their chins or allow themselves to be characterized as obsessed with polarizing cultural issues.

Of course, one must still account for Mamdani’s victory, one which seems to go against the grain of every point I have made. But New York City is not a swing election; the combined 92% of the vote for Mamdani-Cuomo demonstrates that Republicanism is no stronger today than it has been in recent years. Yes, Republicans will attempt to castigate all Democrats as “socialists” and worse by pointing to Mamdani’s victory. But Republicans would not blink at calling Mikie Sherrill or Abigail Spanberger “socialists,” as they have every Democratic leader, so the added benefit of actually having one to point to is unlikely to move many voters from ambivalent to voting Republican, and they are the only ones in play.

Lastly, Mamdani has proven himself a savvy politician and he will undoubtedly surround himself with a bevy of others who realize that his popularity will be based not on whether he achieves some Marxian Valhalla-on-the-Hudson, but by how successfully he addresses issues that impact the lives of New Yorkers: affordability (the big themes of the night, and far from the easiest promise on which any of these candidates can deliver), crime, garbage collection and other less-than-glamorous challenges that bedevil every mayor. His biggest challenge may be sustaining his support among idealistic young voters while spending most of his time delivering on those kitchen table issues. The more sweeping policy goals that brought out the young idealists will invariably face deep resistance from the City Council and state legislature and will prove far more challenging to implement, and that shortcoming could fuel more of the disenchantment that has sapped enthusiasm for political participation among voters of all ideological perspectives.