Americans hate Congress. Yet approval of Congress is now at a 12-year high (a modest 35 percent) because Congress is actually doing something. Voters are encouraged by the passage of the $1.9 billion economic stimulus package. The legislative branch is actually legislating!
But unless the Senate changes its bizarre filibuster rules, Congress won’t be doing anything else any time soon–including passing the Equality Act.
The passage of the stimulus package relied on an obscure rule that allows the Senate to pass budgetary issues without the threat of a filibuster. But virtually no other legislation, including voting right protections or the Equality Act, qualifies for that exception.
The problem is confined to the Senate. The House can pass legislation on a simple majority vote.
Under Senate rules, 60 senators need to vote to end debate on legislation and move it forward, a process called cloture. That doesn’t mean all 60 will vote for a bill. That just means that they will allow the entire Senate to vote for it.
Republicans in particular have been using this tactic to ensure that legislation they don’t like never comes to the floor for a vote. (Democrats use it too, but not as lavishly.) In a closely divided Senate, that ensures that bills require a supermajority to pass–which almost never happens.
Instead, the Senate is the graveyard for proposed legislation. In the 2017-2018 session, just 52 bills were passed, a historically small number. By contrast, there were 168 cloture votes.
Democrats are fed up. The most progressive members have been pushing to end the filibuster altogether, but two Senators, Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), have said they oppose such a move.
Instead of eliminating the filibuster outright, Manchin is proposing a return to the talking filibuster, where Senators have to hold the floor and talk nonstop. In an interview with ABC News, Biden said the change is needed.
“It’s getting to the point where, you know, democracy is having a hard time functioning,” Biden said.
Senate Minority Leader Mitch McConnell immediately erupted at the prospect of losing a key lever of his power. Republicans have pitifully few legislative priorities; instead, their existence hinges on saying no to anything Democrats propose.
McConnell threatened a “scorched earth Senate” if Democrats end the filibuster. McConnell may have well as made his threat standing in the ashes of the Senate while holding a pack of used matches. More than anyone else, he is responsible for grinding the Senate to a standstill.
In a highly polarized Senate, the Democrats will never be able to pass their legislative priorities with the filibuster in place. Theoretically, the filibuster should lead to bipartisanship by encouraging compromise.
But as the Republicans themselves have proved, no compromise is likely to move them. They provided ample evidence of that during the Obama administration. President Obama chewed up months trying to get Republican support for the Affordable Care Act (ACA). All the GOP Senators did was keep moving the goalposts, with no intention of ever supporting the act.
Democrats had control of both chambers then too – and bluntly told the LGBTQ community that the ACA was being prioritized over civil rights legislation. While the ACA eventually passed both chambers, the civil rights bill was never seriously considered before Democrats lost control.
Biden’s support for filibuster reform may change all that. As a long-time Senator, no one respects the traditions of the Senate more. His change of heart carries a lot of weight. It would also give the Equality Act a fighting chance at passage.
The president’s position may also force Sinema to change her tune. Sinema clings to bipartisanship like a life raft in the ocean, ignoring the fact that the GOP keeps poking holes in it. She has declared that she won’t eliminate the filibuster, but perhaps reforming it would give her cover to tweak her position.
Otherwise, the Equality Act and a lot of the Democratic agenda is doomed to failure. If Sinema refuses to go along with the change, she will have the odd distinction of being a sponsor of the Equality Act and the person who singlehandedly ensured its failure.