Too often politicians with majority power talk of bipartisanship as some glorious zenith to democratic ideals. But while they commit themselves to bipartisanship, they’re rarely interested in good-faith arguments and give-and-take. What they want instead is for the minority party to simply concede defeat and capitulate.
This is a pattern that appears to be playing out in the Biden administration. While Biden talked a great deal about healing the growing partisan chasm, Senate Majority Leader Chuck Schumer, whose importance in the Democratic party is second to the president, has shown a complete lack of interest in working with his colleagues across the aisle.
Democrats have made much noise lately about how the filibuster–smeared as nothing more than a relic of the Jim Crow era–is a tool of obstructionism, being used by Republicans desperate to hold onto power despite losing this election.
This argument might mean more if the Democratic majority were more than just technical: reliant on the fact that they hold the vice-president’s tie-breaking vote. Or if Mitch McConnell hadn’t been against eliminating the filibuster even when his party was in power, recognizing it as an important tool, sometimes susceptible to abuse, that preserves the rights of the minority and the integrity of the Senate.
The role of the minority party is to establish roadblocks that prevent majorities from running roughshod over the voices of dissenters. This is what separates republics from democracies. But opposition is more than just pig-headed intransigence. There are issues on which the minority may agree with the majority and band together to accomplish something both parties think is worthwhile. But it is up to the majority to convince the minority party that their ideas are good.
The filibuster plays an important role in this balance. By requiring a 60-vote threshold to bypass the filibuster, it establishes a need for the majority party, unless it commands a very strong majority, to work with Senators from across the aisle.
But on top of orally trashing the filibuster, Schumer is also working to find procedural loopholes that will allow him to pass his legislative agenda without the cooperation of Republicans or the occasional dissenting Democrat.
According to Senate rules, the reconciliation process requires a bill have some kind of budgetary implications and can only be used once per year. Democrats have already done this; they used the 2021 budget to set up their $1.9 trillion stimulus bill.
But they’re looking for loopholes that would allow them to use reconciliation again. According to Schumer, Section 304 of the Congressional Budget Act, gives him the ability to use reconciliations again to endrun the filibuster and pass legislation by a simple majority.
His reading of that statute seems awfully generous to himself. Section 304 gives the Senate (and the House) the ability to “adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to.”
That gives Congress the power to revise, not implement completely new pieces of legislation, which Schumer is looking to do.
Senate Democrats are looking for ways to pass Biden’s ‘Build Back Better‘ plan, an omnibus package with a rumored $3 trillion price tag, which will cover everything from infrastructure programs and rebuilding domestic production to climate change.
And it appears Democrats have no interest in watering any of the bill’s initiatives down. Speaking to The Hill, one of Schumer’s aides stated that Schumer’s interest in using reconciliation comes from a desire to prevent Senate Republicans from trying to “water down a bipartisan agreement.”
In other words, Schumer, Biden and Democratic leadership isn’t actually interested in negotiating with Republicans in the Senate. They’re content to allow something to pass in the House, either on a party-line vote or with bipartisan support, and then to pass it without allowing any dissenting voices in the Senate to have input.
Whether Schumer will be able to use reconciliation to do this in 2021 is up to the Senate Parliamentarian, who researches and interprets the body’s procedural rules. To be clear, the Parliamentarian has no political power: her job is to inform Senators what their rules allow them to do. And the Senate is always free to overhaul its own rules.
Should the Parliamentarian strike down Schumer’s plan to use Section 304 of the Budget Reconciliation Act, it’s likely Schumer and other prominent Democrats will respond by intensifying their crusade against the legislative filibuster.
And that will likely mean the end of even the pretense of bipartisanship. Short of a few moderate holdouts like Joe Manchin, the Democrats will be able to pass pretty much whatever they want, with no input from Republicans. And Republicans will have no tools to stop them.
Democrats might find this appealing now. But they won’t be in the majority forever. And it’s hardly likely that the next time they’re in the minority they’ll sit quietly by as Republicans pass legislation they don’t like and reflect on the situation they’ve put themselves in.
It’s easy to prioritize short-term policy wins over a longer-term consideration of the structural integrity of the legislative branch. But Democrats must take the longer-view. Getting rid of the filibuster will hurt the ability of citizens to have meaningful representation in Washington. Using reconciliations to bypass the filibuster does nothing to help this either.
Democrats should rethink their strategy, abandon the idea of nuking the filibuster, stop looking for opportunities to abuse reconciliation and engage in meaningful policy conversations with their political opponents in Congress.