Can Democrats Gut the Filibuster After Reconciliation Is Done?

Filibuster fans (and thus voting-rights obstacles) Joe Manchin and Kyrsten Sinema. Photo: Jabin Botsford/The Washington Post via Getty Images

It’s a fraught time for Democrats in Washington as negotiations over the infrastructure and reconciliation bills wind a complicated path toward success, failure, or still further delay. House Speaker Nancy Pelosi has scheduled a vote on the Senate-passed bipartisan infrastructure bill for October 31, but that won’t happen until a deal on the Build Back Better budget reconciliation bill is more or less in place, at least in sufficient detail to satisfy progressives. Beyond this self-imposed deadline, Democrats hope that a big breakthrough in the coming days will help Virginia Democratic gubernatorial candidate Terry McAuliffe win a close race on November 2.

If and when this huge hurdle for Democrats is overcome, another may appear almost immediately. There is a school of thought among frustrated voting-rights advocates that once all the wheeling and dealing over money matters is done, Joe Biden and congressional leaders will — and most definitely must — pivot to a full-court press to reform the Senate filibuster so that their top priority can be addressed before the 2022 midterms. That means moving the two outspoken filibuster defenders among Senate Democrats, Joe Manchin and Kyrsten Sinema, to reverse their long-held position, as Ron Brownstein explains:

[O]nce reconciliation and infrastructure are completed, many hope Biden and other party leaders can intensify pressure on Manchin and Sinema to find some way to exempt voting-rights legislation from the filibuster.

“The fact that reconciliation has stretched this long has definitely been harmful to the efforts to move Manchin and Sinema on voting rights and the filibuster,” says Eli Zupnick, a spokesperson for the liberal advocacy group Fix Our Senate. “My theory, and I think everyone’s theory throughout … is that once [the White House] got through reconciliation, they felt they could expend political capital with Manchin and Sinema in a way that they could not with reconciliation hanging out there.”

In other words, the theory goes, when the Build Back Better agenda has been salvaged, it will be time to lower the boom on Manchin and Sinema and obtain, if not a full abolition of the legislative filibuster, at least a carve-out for voting rights. That would enable Democrats to enact some version of the recently filibustered Freedom to Vote Act, and the soon-to-be-filibustered John Lewis Voting Rights Advancement Act, in the very near future.

There’s only one problem with that theory and with the raised expectations for success it creates: There is zero actual evidence that there is anything Biden or congressional Democrats might have done to Manchin and Sinema to move them on voting rights that they have withheld up until now. As for progressive opinion: Is there any term of abuse for these two senators that has not been uttered repeatedly? What’s left to say about them that will suddenly bend their steely determination to defend the filibuster, the very instrument of the power they hold in this Congress?

Keep in mind that both Manchin and Sinema have been categorically negative about a filibuster carve-out for voting rights or for anything else for a long time now. Sinema could not have been much clearer on the subject in her definitive statement on filibuster reform in a Washington Post op-ed:

To those who want to eliminate the legislative filibuster to pass the For the People Act (voting-rights legislation I support and have co-sponsored), I would ask: Would it be good for our country if we did, only to see that legislation rescinded a few years from now and replaced by a nationwide voter-ID law or restrictions on voting by mail in federal elections, over the objections of the minority?

Her position is that voting-rights legislation enacted via a party-line vote is essentially worthless. Joe Manchin, who is himself the chief architect of the Freedom to Vote Act legislation Republicans filibustered to death just a few days ago, has been even plainer, saying he “can’t imagine” a carve-out he would support for voting rights or anything else. It’s not like either of these senators hasn’t thought about it or expressed an opinion on it. It would take an abrupt 180-degree turn for them to support it.

It’s also unclear what sort of “boom” Biden or anyone else could lower to change their minds. Joe Manchin represents the second-Trumpiest state in the union (trailing only Wyoming), based on the percentage the 45th president won in 2020. It would help him immensely back home to say no to any ultimatum by his fellow Democrats. And so that means even if Sinema flipped (and in her case, she seems to have decided an independent persona is her own path to reelection and glory), it wouldn’t matter. Both these obstinate Democrats, moreover, will be needed between now and 2024 in future Senate votes. Their leverage doesn’t end with the Build Back Better negotiations.

Democrats really need to manage expectations intelligently on this subject: The voters most invested in voting-rights legislation will need to enter the next two election cycles feeling positive, motivated, and even excited if the Donkey Party is to increase the currently very slim odds it can hold onto its governing trifecta next year and the presidency in 2024. If, as I suspect, a filibuster carve-out for voting rights is doomed for the time being, they need to spend more time talking about what they can do judicially and administratively to resist GOP voter-suppression measures, and also focusing on those state-level midterm contests that could help turn the tide in this and so many other areas. Leading Democratic constituencies to think federal voting-rights legislation is just around the corner may backfire.

Can Dems Gut the Filibuster After Reconciliation Is Done?