Senate rules are fostering obstruction — not bipartisanship.
In a speech on Thursday, Sen. Kyrsten Sinema (D-AZ) reiterated her commitment to preserving the filibuster by citing a familiar reason: bipartisanship.
As Norm Ornstein, a political scientist at the American Enterprise Institute, has emphasized, however, the belief that the filibuster fuels bipartisanship is one of many myths about the rule. The filibuster requires most bills to get 60 votes in order to proceed in the Senate, but it’s often used as a tool to obstruct legislation, not foster it.
“Certainly there was a time when we had well-established norms in the Senate that fostered problem-solving and bipartisanship,” Ornstein told Vox. “That time is long gone.”
Since Democrats took control of Congress following the 2020 elections, Republican filibusters have killed many of their bills. Democrats are now attempting, again, to pass major voting rights bills (the Freedom to Vote and John Lewis Voting Rights acts), and they are, again, expected to be filibustered by the GOP.
Most Democrats, including President Joe Biden, have had enough. The party’s now pushing for filibuster reform — and a vote on altering the rule is imminent. But moderate Sens. Joe Manchin (D-WV) and Sinema have resisted calls to make changes. Thursday, Sinema made it clear she wants the filibuster to stay the way it is.
“I will not support separate actions that worsen the underlying disease of division infecting our country,” Sinema said in remarks emphasizing her support for the filibuster. Sinema’s speech, which effectively dooms Democrats’ chances at a rules change since they need all 50 members on board, rests on the idea that keeping the vote threshold would encourage more compromise and less division.
In a conversation this week, Ornstein spoke with Vox about why this idea is mistaken, why the Senate needs a rules change, and why many arguments against it deserve more scrutiny.
This transcript has been edited and condensed for clarity.
You’ve pushed for filibuster reform for a long time, but such calls have intensified in recent months as states have passed new laws restricting voting rights. What is different to you about the political moment we’re in right now?
First, we’re finally seeing, I think, a level of frustration, over the misuse of the filibuster, not as an infrequently applied tool by a minority on an issue about which they feel very, very strongly, but as a cynical weapon of mass obstruction. And that started with increased vengeance in the Obama years. But it’s continued. And it means if you don’t have more than 60 of your own party members, you’re just dramatically limited in what you can do in policy terms. And it’s basically because you have a minority party that’s not looking to solve problems, but to figure out how to block anything of significance in your own agenda, and make sure problems fester so that they have more traction to gain political advantage.
That’s different. It’s been different, really, for the last almost 15 years. And it’s reached a point of deep frustration.
But the trigger, obviously, now is the voting rights issue. And that’s the second reason. We see this with a number of Democrats who have been reluctant in the past to consider rules changes: people like [Sens.] Mark Warner and Chris Coons and Angus King and Tom Carper.
There’s a belief now that we face an existential threat. And it’s a belief that is grounded very deeply in the reality of the moment. We had this violent insurrection on January 6. Leading up to it was two months of an effort by a president and his allies — which includes, after all, a very substantial number of elected officials in Congress and in states and some elsewhere — trying to overturn the results of an election. And that it wasn’t a one-off.
What we’re seeing with all these laws, now being both enacted and pushed in states, are attempts to make sure that in states, for example, where honest election officials, including Republican election officials, did their duty, that you have the ability to remove them; where you had election workers, both on Election Day and counting the votes afterwards, doing their job, that you can find ways to intimidate them and keep that from happening; that you can have partisan bodies overturn election results that they don’t like. That you can suppress votes you don’t like.
And that’s happening in critical places around the country, and it requires some guardrails around the system. They’re not going to be perfect. But you have two things: the Freedom to Vote Act and the John Lewis Voting Rights Act.
The Freedom to Vote Act was put together in a compromise drafted significantly by Joe Manchin, with [Sen.] Amy Klobuchar and others participating, so that Manchin could have something that he believed was not as wide-ranging and far-reaching as the original Protect the Vote Act. But that he was confident that this could be made bipartisan, because of course, there are Republicans who believe in the rule of law and fair elections.
And he’s gotten zero. So they’re seeing that that guardrail just isn’t going to apply, unless you can change the rules. And then you’ve got the John Lewis Voting Rights Restoration Act. And keeping in mind that, you know, that’s basically trying to restore the core elements of the act that previously had been revised in 2006, eviscerated by the Shelby County decision [from] the Supreme Court, and then the Brnovich decision, among others. And you have the 2006 act that passed unanimously in the Senate, 98 to nothing; its co-sponsors included the likes of [Sens.] Mitch McConnell and Chuck Grassley, and none of them support it now.
So how do you do anything? You either let it go and endanger, fundamentally, democracy in the country and the constitutional system, or you find a way to make it happen. And so there’s an openness to reform, not an openness to eliminate the filibuster, but to find a way at least to make this happen, and maybe to do something that changes the balance in which the filibuster is used, so that it once again becomes something that has a burden on the minority, and can’t be used quite as overwhelmingly as a weapon of mass obstruction.
It sounds like what you’re saying is, it’s this convergence of Democrats being tired of longstanding Republican obstruction, but also the necessity of needing to pass voting rights legislation in this exact moment.
Given this context, why do you think Sens. Manchin and Sinema have still been reluctant to weigh even modest reforms and publicly support them?
I think there are different bases to some degree. But at the core of it is this belief that the Senate should act in a bipartisan fashion, legislation should be bipartisan, the more you operate in a partisan fashion, the more you inflame the polarization and tribalism.
A second part of this that I think they share is a belief that a supermajority requirement encourages bipartisanship. And, you know, there are other elements, the questions of whether you think that this was the framers’ intent, and whether you believe that it’s a slippery slope, and once you change it, it’ll come back to haunt you. That is at the core for both of them, but particularly for Sinema. That if you enact voting reforms now, they will come back and undo them in a few years. So they have their reasons.
But as I pointed out in this piece I wrote in the Post on Sunday, a lot of it is based on myths about where the filibuster came from, what it does, and what the consequences would be of change.
I don’t know if they’re going to go along with this. I honestly don’t know if we’re going to be able to find a set of reforms that will bring both of them in. I think it’s more likely that you can find something that will satisfy Manchin. But that’s because he’s indicated, publicly, willingness to consider some of the things that they’ve talked about, and some of the things that I’ve talked about.
What’s your response to Sen. Sinema’s speech — and the statements she made about needing to preserve the filibuster to reduce division?
Certainly there was a time when we had well-established norms in the Senate that fostered problem-solving and bipartisanship. That time is long gone.
You can see it on this issue of voting rights. Joe Manchin labored mightily to come up with a compromise bill so that he could entice 10 Republicans to make it bipartisan. He did not get a single one. As President Biden mentioned in his speech [on Tuesday], 16 Republicans currently in the Senate voted for the 2006 extension of the Voting Rights Act. Not one of them supports the John Lewis Act. Republicans will act in a bipartisan fashion when it suits their interest without regard for the filibuster, not because of it as it is currently crafted.
Of the possible reform options that have been discussed, is there one that you see being more of a likely option that could get the backing of all 50 Senate Democrats?
Well, [there is an idea I’ve advocated for] to flip the numbers from 60 required to end debate to 41 required to continue it.
Now, I’m very much open to a variation of this, which is you can apply it once a year, to try and get away from the idea that you’re making dramatic and fundamental changes overall.
You can marry that with elements of the talking filibuster, that whenever there is a motion, [41 dissenting senators] have to be physically on the floor. They have to get to the floor when the motion to end debate is raised within a very brief period of time, so they can’t just mail it in. If you’re going to go around the clock, they’ve got to be within striking distance of the Senate floor. And you can then go nights, weekends, disrupt people’s lives and put the burden on the minority.
If you put the burden entirely on the majority, and if you have a minority party that has as its core strategy uniting in opposition to everything of significance to the majority, you have a formula for obstruction. And that’s not the way it was, if you go back to the history of the filibuster, from the major innovation that created the term in 1917. [Back then,] if you were going to filibuster, you got to be there. You got to pay a price, you may have to sleep on lumpy cots for nights on end. Because the idea is, if you are in the minority, and you feel strongly enough about something, then you have a couple of things to keep in mind.
One is, if you want to bring things to a halt and overcome the will of the majority, you’re going to have to pay a price and have a burden. The second is, your goal here in bringing things to a halt is to shine public attention on the issue, so that you can use your debate to persuade the majority that they’re wrong, and change the public’s views so that you can prevail. And you can take some time to be able to do that. Well, that’s gone now. There’s none of that.
An example I use frequently now is the House passed two bills last year, on universal background checks on guns, an idea that has the support of 90 percent or more of Americans, including across all lines.
They move to the Senate. Has there been any debate? No. Will they ever be brought up under the current rules? No. Why? Because they’re going to fail. They’re not going to pass. They don’t have 60 votes, they don’t have 10 Republicans who would support any of those things. And if you’re the majority leader, time on the floor is very precious, you’re not going to spend a lot of time on something that’s going nowhere. So we don’t get debate on this issue. And the minority prevails, even though they’re fighting against 90 percent of the country that wants something that’s got common sense.
If you’re going to have to go to the floor and defend the indefensible, explain why you’re with the NRA gun manufacturers and not 90 percent of Americans, at some point you’re probably going to say, why don’t we have a compromise on this? So, part of the argument to Sinema and Manchin is if you want incentives to compromise, there are zero now. But you can have an incentive to compromise if they’re going to have to go through pain and defend things that don’t have majority support even within their own ranks.
If they were to take up that reform of shifting the burden to the minority, do you see that actually making passing voting rights legislation easier, and something that’s plausible in the near term?
Easier? Yes. Plausible? Yes. A certainty? No.
If you shift the burden to the minority, it doesn’t take the burden off the majority entirely. If you say, here’s what we’re going to do, we’re going to stay in session, seven days a week, seven nights a week until we can get this done, it’s entirely possible that the Republicans would feel strongly enough about it that they would just go ahead and let it go for weeks or months on end.
That means, of course, you’re going to have to keep putting off Build Back Better or any other priorities that you want. An emergency might occur along the way where you’d have to stop and bring up something else. You don’t have a certainty that it could pass. But I think it gives you more than a fighting chance to be able to get things done.
So if you don’t make a change in the rules, the chance of getting any meaningful reform of the voting and election system out of the federal government is zero. If you pass a reform that doesn’t end the filibuster, but that puts the burden more on the minority, then you have, I’d say, a better than even chance of getting something important done. Not just important, really, I would say, it really is existential.
What do you see as the purpose of this upcoming Democratic vote on the filibuster rules if the expectation is it will probably fail?
I think we see two things happening here. One is, if you just let this go on indefinitely, there is no particularly strong incentive other than the fact that the longer you wait, the worse the system erodes for people who have misgivings to come to closure. So pushing with deadlines moves you closer to getting a result one way or the other.
The second is, you really do need to have a sharp public focus on the threat that this poses to the country and to its fundamentals. And we haven’t had that as much. And you know, you get stories, but then they pass. It’s certainly not been a core component of daily news coverage and mainstream media. It’s not what dominates the front pages.
Now we’re seeing the president use his unique position, the bully pulpit, to put that public pressure on. And it’s not that the public pressure is going to sway Manchin or Sinema directly. But indirectly, just underscoring the degree to which this is different than what we’ve seen before. This is a big threat to our way of life, that there’s only one way to ameliorate that threat. And that one way has to involve a change in the rules.
How legitimate do you think the fears are from some Democrats that if they did make changes to the filibuster, when Republicans retake the majority, they’ll use these changes to undo Democratic laws or just go scorched-earth on Democratic policies?
One of the questions that gets asked a lot is, why didn’t Sen. McConnell change the rules when he had the chance for the first two years of the Trump administration? And my answer to that is they had two legislative initiatives, basically: big tax cuts, and repeal and replace Obamacare. And both could be done through reconciliation. So if there had been major legislative initiatives at that point, I have no doubt in my mind that they would have changed the rules.
Anybody who believes that Mitch McConnell would be restrained from changing the rules because Democrats didn’t change the rules has been asleep for the last 15 years.
The blue slip practice is Exhibit A on that front. Restraint on one side does not bring restraint on the other.
If Democrats don’t change the rule, [and] Republicans get a Republican president and have a Republican Congress, and they have a set of legislative priorities that Democrats filibuster, and they’re important to them, they’ll change the rules in a nanosecond.
The second is, is there a possibility, if not a likelihood, that if the Republicans have power, which means House, Senate, and presidency, they’ll overturn a lot of what Democrats would do? Yeah.
If somehow they win, and they undo those laws, at least you’ve saved the system for a few years, and possibly even for longer.