Harry Reid, the former Democratic senator from Nevada who died Tuesday, leaves behind an impressive legislative legacy — but there’s one unfinished piece of business that Senate Democrats need to complete. Reid, while he was the Senate majority leader, weakened the filibuster. Now it’s time to end its chokehold on America once and for all.
In 2013, with Reid in control of 55 seats in the Senate, the number of Republican-led filibusters had skyrocketed, especially regarding then-President Barack Obama’s judicial nominees. So that November, he pulled the trigger on the so-called nuclear option. Through a 52-48 vote, the Senate agreed to change the rules, allowing presidential nominees (except Supreme Court justices) to be confirmed with a simple majority vote.
It’s not at all a problem that Reid changed the rules. The problem is he didn’t go far enough.
More than a few pundits warned that Democrats would regret their choices when facing karmic retribution from Republicans for what they’d done. Senate Minority Leader Mitch McConnell, R-Ky., said it was “a time to be sad about what has been done to the United States Senate.” On the eve of Reid’s January 2017 retirement, Politico reported that Reid and McConnell were still bickering over which of them broke the Senate: McConnell with his abuse of the filibuster or Reid with his rules change. The answer is clearly McConnell, who, for all his protestations then, used Reid’s maneuvering as an excuse to lift the filibuster on Supreme Court nominees in 2017.
It’s not at all a problem that Reid changed the rules. The problem is he didn’t go far enough. In effect, Reid’s maneuver lowered the threshold for Senate approval of presidential decisions, while keeping the body’s own work vulnerable to unwavering obstruction from an uncompromising minority. By empowering Obama and future presidents as leaders of their party, the Senate’s own role in government as more than a rubber stamp was ironically weakened.
And as the GOP’s policy priorities have shifted, leaving the legislative filibuster in place has hamstrung Democrats far more than Republicans, as I pointed out in January. Setting aside intraparty squabbling, there just isn’t much the weakened filibuster could block during former President Donald Trump’s term:
There wasn't actually all that much the Republicans wanted that needed to get past the filibuster in its reduced state after the 2013 rule change. McConnell's strategy of withholding federal judgeships from Obama nominees paid off in spades, letting him spend four years stuffing the courts with conservatives. And when Trump's first Supreme Court nominee, Neil Gorsuch, was filibustered, McConnell didn't hesitate to change the rules again. Trump's more controversial nominees also sailed to confirmation without any Democratic votes.
Legislatively, there were only two things Republicans really wanted: tax cuts and repeal of Obamacare. The Trump tax cuts they managed through budget reconciliation, a process that allows budget bills to pass through the Senate with just a majority vote. Republicans tried to do the same for health care in 2017 to avoid the filibuster, failing only during the final vote, when Sen. John McCain's "no" vote denied them a majority. The repeal wouldn't have gone through even if the filibuster had already been in the grave.
When Reid first became Senate majority leader in 2007, Democrats had nearly as slim a majority as they have today. Then, for the brief, shining moment between July 2009 and January 2010, Reid possessed something that no other majority leader had in over three decades: 60 members caucusing with his party. It was a time when, in theory, no amount of Republican obstructionism could block Obama’s agenda.
In practice, though, the filibuster still reigned supreme. Two elder statesmen among the Democrats were facing constant health issues, which complicated the scheduling of votes. Meanwhile, as the Obama administration struggled to craft the Affordable Care Act, renegades like Sen. Joseph Lieberman, I-Conn., threatened to join Republicans in voting to filibuster any inclusion of a “public option.” Other moderates — like Sens. Ben Nelson, D-Neb., and Mary Landrieu, D-La. — whose votes could have been ignored in a simple majority vote demanded changes that watered down the bill. It was only through Reid’s efforts that the bill managed to secure all 60 votes needed to overcome the filibuster just days before he’d lose that supermajority.
It’s possible that Reid may not have had the votes to take down the legislative filibuster in 2013. Three Democrats, including Sen. Joe Manchin, D-W.Va., opposed the change at the time. More may have defected if the 60-vote threshold for passing laws was on the table, too.
But the caucus has come a long way since then. Former institutionalist members like Sens. Angus King, I-Maine, and Tom Carper, D-Del., have recently expressed their support for changing the rules — at least as far as passing voting rights is concerned.
We’re down to just two senators who are willing to put the filibuster ahead of progress: Manchin and Sen. Kyrsten Sinema, D-Ariz. The Washington Post’s Greg Sargent recently reported that Manchin might — might! — be open to reforms of the filibuster that allow voting rights legislation to pass. Less certain is what it would take for Sinema to get on board. She said as recently as November that she’s against the idea of modifying the 60-vote threshold at all.
Sinema’s fears sound a lot like the fears from those who wrung their hands when Reid went nuclear almost a decade ago. The filibuster remains a comforting tool for those who are too scared to take difficult votes. But by 2019, Reid himself had concluded that he had not gone far enough in changing the filibuster’s rules, calling for it to be abolished entirely while ruefully listing the number of policies he’d allowed to stall instead:
I previously assumed, perhaps wrongly, that the fever would eventually break — that Republicans would be forced by the American people to put their country above their party. I assumed the calls for action on critical issues would be heard — that collegiality in the Senate would prevail.
That never happened. If anything, the Senate is more gridlocked and polarized than ever.
As I said in 2013, the Senate is a living thing, and to survive, it must change — just as it has throughout the history of our country. The American people elect leaders to address the issues facing our country, not to cower behind arcane parliamentary procedure.
Reid made the right call when he decided that challenging Republican obstruction was more important than tradition. It was “a fierce sense of economic fairness and a belief in fighting for the Democratic agenda wherever possible,” as HuffPost wrote, that endeared the Nevadan to progressives that worked for him over the years. With his death, it’s a commitment that Democrats need to take to heart in the coming months. The alternative to reform is to potentially let President Joe Biden’s agenda wither on the vine — and American democracy along with it.