Bill Scher: The Filibuster is Working - You Just Can’t See It

"The same Dems who argue to keep the filibuster ‘for when we need it’ do not use it when we need it,” posted Representative Alexandra Ocasio-Cortez. The New York Democrat’s complaint followed Senate passage of the House Republican “continuing resolution”—aided by 10 Senate Democratic caucus members who supported cloture—that kept the government open without restraining President Donald Trump’s unconstitutional attempts to impound congressional appropriations.  

Her accusation of hypocrisy is widely echoed in the party but it’s misdirected. None of the 10 voted to preserve the filibuster in January 2022, when Democrats tried to suspend the filibuster rule to pass voting rights legislation. Back then, Democrats were thwarted only by conference members Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, who are no longer in the Senate. (One of the 10, Senator John Fetterman, wasn’t in the Senate at the time but is on record supporting the abolishment of the filibuster.) 

Does Ocasio-Cortez’s larger point—that the filibuster is useless for Democrats because Democrats don’t use it when it counts—have merit? Still, no. The filibuster is not impotent and dormant. It’s very much alive, constraining the GOP legislative agenda every day, even if it doesn’t feel that way during Donald Trump’s tumultuous second term.  

Provocative bills that have reached the Senate floor have mostly been filibustered (as Sinema pointed out during a snarky X exchange with Ocasio-Cortez this month). Two weeks ago, Senate Democrats blocked a bill that would have banned schools that receive federal funding from allowing transgender girls and women from playing on female sports teams. In January, they derailed a bill that would have put doctors performing emergency late-term abortions at risk of criminal penalties, as well as a bill that would have sanctioned International Criminal Court officials for issuing an arrest warrant to the Israeli Prime Minister. Filibustering those bills was not without political risk for Democrats, but they did so anyway... 

The most significant impact of the filibuster is on the bills that never come up for a vote. 

Much of the controversy surrounding the modern application of the filibuster centers on it effectively creating a 60-vote threshold to pass any legislation since 60 is how many votes are needed to end debate with “cloture.” Instead of old-fashioned “talking filibusters” that require great endurance and subject the instigators to public scrutiny—think Mr. Smith Goes to Washington—we get “silent filibusters” that require no effort and prevent bills from reaching the floor.  

Today’s GOP legislative agenda is severely constricted despite having a majority in both chambers. Congressional Republicans are mainly focused on what they can stuff into a reconciliation bill, which under Senate rules is filibuster-proof but can only include budget-related provisions. They are angling for radical cuts to Medicaid to finance huge tax cuts for the wealthy and may succeed. But we know from the Build Back Better bust of 2021 and the failed attempt to repeal the Affordable Care Act in 2017 that passing party-line reconciliation bills is harder than it looks.  

If Democrats had abolished the legislative filibuster (or effectively abolished it by setting a precedent for suspension by simple majority vote), then there would be no stopping a far-right, fascistic legislative freight train. And that would have been a precursor to packing the courts, which, as I argued last month, we should be eternally grateful did not happen. While under increasing strain from Trump, our constitutional system of checks and balances is one of the last guardrails. While the filibuster is not mentioned in the Constitution, it is in line with the spirit of the Constitution, which is designed to prevent tyranny by the majority. Granted, with Trump—who has never won a popular vote and is underwater in polling averages—we have an aspiring minority tyrant. But we still need every check to avoid sliding into authoritarianism. 

Filibuster opponents from the left once scoffed at the threat of an unchecked Republican trifecta. The right will be constrained by public opinion, the argument went, or they will pay a price at the next election. Such statements are heard less frequently now, as they have been supplanted by concerns that we will never have a free election again. But the Constitution’s diffusion of powers, abetted by the filibuster, ensures elections will happen on schedule in 2026 and 2028, allowing the public to bury a GOP agenda they never fully understood or supported.  

Until then, the filibuster silently works daily to limit the carnage this Republican-controlled Congress can unleash. In 2021, when Democrats took the White House and both chambers of Congress, they almost scuttled the filibuster. The next time Democrats win a trifecta, I suspect their memories of the Trump trifecta will be long enough that they won’t again flirt with such danger." 

Source:The Washington Monthly with a look at U.S. Representative Alexandria O. Cortez (Democratic Socialist, Bronx, New York) doing what she probably loves to do the most and perhaps loses sleep because she can't wait to get to the office and do again: taking questions from Washington reporters.

From The Washington Monthly

I swear almost every time that Representative Alexandria O. Cortez speaks about anything, especially relating to Congress, she proves not just why he's not in the Democratic Leadership, but that at least suggests that she has no interest in being in the Leadership either: 

"The same Dems who argue to keep the filibuster ‘for when we need it’ do not use it when we need it,” 

From U.S. Representative Alexandria O. Cortez

I could understand a freshman member of the House not understanding House rules, yet. That person has only been on office for a couple months now. But she's been there since 2019 and has at least flirted about wanting to be promoted in Congress by getting elected to the Senate. Yet, she has no idea how the Senate filibuster seems to work, when it's used, how it's used, the consequences that come from using it, when the Senate Minority Leader asks for votes to block legislation that the majority is pushing, etc. Even though she's been a part of every major Congressional battle and debate in Congress the last 6 years. 

This key point from Bill Scher is also my point as well: 

"Today’s GOP legislative agenda is severely constricted despite having a majority in both chambers. Congressional Republicans are mainly focused on what they can stuff into a reconciliation bill, which under Senate rules is filibuster-proof but can only include budget-related provisions. They are angling for radical cuts to Medicaid to finance huge tax cuts for the wealthy and may succeed. But we know from the Build Back Better bust of 2021 and the failed attempt to repeal the Affordable Care Act in 2017 that passing party-line reconciliation bills is harder than it looks. " 

That fact that Congressional Republicans need reconciliation between the House and Senate, to avert a Democratic filibuster in the Senate, is all you need to know how effective the filibuster is. 

And the fact that Republicans need around 900 billion dollars in budget cuts to pay for their 880 billion dollar economic package, that includes new military spending, border security, and new tax cuts for wealthy individuals and corporations, as well as to extend their tax cuts from 2017, that mostly went to wealthy individuals and corporations, proves that the filibuster is still alive and well. 

Without the filibuster, Congressional Republicans wouldn't need reconciliation. They could just borrow the 880 billion or so and leave Medicaid, Medicare, Social Security, and Defense alone. Which would cause other problems for them as well. Which could be part of a future discussion. 

But the fact that Congressional Republicans need 880 billion either in new cuts, or in new revenue, to pay for their economic package and how unpopular those cuts would be and politically painful they would be, especially for mainstream House Republicans, who have a solid number of Democrats and Independents in their districts, proves that the filibuster is still alive and well and very effective right now. 

Just because you have a political tool, but don't always use it, doesn't mean it's not there, or even the threat of it isn't there. Imagine Alexandria Cortez, or someone like her as Senate Democratic Leader right now: Congress would never be able to go home, because Senate Democrats would do all the talking and even Donald Trump might be able to find a way to keep his big mouth shut (at least once in a while) and let the Democrats feel the political pain, instead of him. She would be the most unpopular person not just in Congress, but in all of Washington and perhaps New York, if she were leading the Senate Democrats right now. 

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