I hadn’t seen this piece of the story when I wrote earlier about Joe Manchin’s latest filibuster argle-bargle. It’s a big one even though Pelosi has no direct influence over what happens in the Senate. The more public pressure she and House Dems like Jim Clyburn put on centrists like Manchin to find a way to get H.R. 1 through, the more likely it is that Manchin’s going to throw them a bone by caving.
Maybe not by agreeing to a “carve-out” from the filibuster rules, which is what Pelosi’s allegedly seeking, but by some half-measure like shifting to a “talking filibuster” or a “41 on the floor” rule in which the GOP has to have that many senators present in the chamber at all times.
Either way, it’s getting real:
"Our democracy requires 60 votes. It doesn’t make sense," Pelosi said on this morning's call, per people listening.
Also referenced this LA Times op-ed from last month https://t.co/JJVtGKoXN6
— Sarah Ferris (@sarahnferris) March 17, 2021
If you missed it last weekend, watch progressive all-star Stacey Abrams make the case for a “carve-out.” The Senate already makes specific exceptions to the 60-vote rule for budgetary matters and presidential nominations like SCOTUS vacancies, right? Well, said Abrams, it’s time to start making exceptions based on legislative subject matter too. Voting rights are special so they get a special rule:
— Sarah Reese Jones (@PoliticusSarah) March 14, 2021
The LA Times op-ed referenced in the tweets above made the case for a carve-out this way:
Over time, additional exceptions have been added. The War Powers Act of 1973, the Congressional Budget Act, the National Emergencies Act and the Congressional Review Act prevent certain types of bills and congressional actions from being filibustered. For example, both parties have used the Congressional Budget Act’s budget reconciliation process to enact significant parts of their agendas without the threat of a filibuster…
Currently, the Senate is split 50 to 50. Perhaps as many as 47 Democratic and independent senators support eliminating the filibuster altogether. At least three Democratic senators (Joe Manchin III, Kyrsten Sinema and Jon Tester) have said they oppose eliminating the filibuster, but they have not publicly opposed making limited exceptions. After all, the voting-rights exception would not eliminate the filibuster but rather follow a long practice of placing restrictions on it for important issues.
And there is no more important issue than our democracy. Indeed, it seems contradictory to allow the anti-democratic filibuster to stand in the way of protecting our democracy. The three senators could easily support this proposal and stay true to their commitments, bringing the number to 50. The Democratic vice president, whose constitutional role in the Senate is to break ties, would be the deciding vote.
Surely Democrats realize that once they ram through a subject-matter carve-out to pass the top item on their legislative agenda, Pandora’s Box will be opened. Even if the Dems themselves manage to resist the temptation to find further carve-outs for issues like immigration and gun control, the GOP will use this precedent to justify carve-outs of their own once they return to the majority, starting with abortion. They’ll also use the Democratic carve-out for H.R. 1 in reverse, to repeal the legislation as an affront to the states’ traditional authority over how they run their elections.
The slope will be slippery and Democrats must know it. I think Ross Douthat’s right about why Pelosi and lefties would be willing to risk that for a bill like H.R. 1. Simply put, they think it’s their ticket to a stranglehold on power. Force the states to expand voting access and the left is sure to win in 2022 and 2024, or so they believe. That’s foolish given the nature of midterms, where the out-party is almost always more motivated to turn out, and it’s risky in assuming that the country won’t face any crises near-term that sour the electorate on Biden’s leadership. But then, as we saw with ObamaCare 10 years ago, Pelosi’s always been a risk-taker.
The risk to her that Republicans will retaliate legislatively once they have the chance seems more manageable, though:
The Democrats have all kinds of internal divisions but they have a core agenda (for now) that unifies the party. The Republicans, given 51 Senate votes, would still lack such an agenda, and so the prospect of giving them more power to legislate inspires little liberal fear.
— Ross Douthat (@DouthatNYT) March 17, 2021
But in the near term the policy moves that McConnell is threatening are either not popular enough, not unifying enough within his own party, or not significant enough to make liberals worry that much about a post-filibuster future.
— Ross Douthat (@DouthatNYT) March 17, 2021
Could Republicans get even 50 votes for a bill imposing sweeping abortion restrictions, knowing that most of the country prefers to keep abortion legal under certain circumstances? Without question, the party at this moment in history is less united around a cohesive policy platform than Democrats are. Even the traditional Republican opposition (rhetorical opposition, I should say) to big spending was muted as Dems pushed through their leviathan COVID relief package.
Pelosi probably needs to worry less about how Republicans will react to the idea of a filibuster carve-out than how her own party will. Manchin and Kyrsten Sinema get all the buzz, but according to Politico they’re not alone within their caucus in feeling squeamish about changing the rules:
Sens. Jon Tester (D-Mont.) and Chris Coons (D-Del.) said they’re not yet convinced of the merits of slashing the Senate’s supermajority requirement, though Tester conceded he “didn’t come here to get nothing done.” The Montanan described the talking filibuster as a “good idea,” though he would still want to require 60 votes at the end of the process.
Sen. Dianne Feinstein (D-Calif.) said she’s “undecided” but has concerns about what would happen when Republicans eventually take back control of the Senate: “It is one of the reasons I am hesitant.” Sen. John Hickenlooper (D-Colo.) said it’s “premature” to completely ax the filibuster.
Sen. Angus King (I-Maine) said he’s “very reluctant” to make that change given the prospect of conservative retribution: “It’s a double edged sword that I think the advocates for [change] are ignoring.”
Jeanne Shaheen, Sheldon Whitehouse, and John Hickenlooper also sound reluctant. Which, maybe, explains why Pelosi has begun talking to her caucus about this even though there’s nothing they can do. She knows it’ll leak and she knows that support for a carve-out from someone of her stature will move the Overton window among Democrats. It’s tough enough for Feinstein and Coons, etc, to be on the wrong side of Stacey Abrams on a voting-rights issue, but now they’re on the wrong side of Pelosi. And Biden too, by the way, now that he’s endorsed a “talking filibuster” instead of the traditional kind. Congressional Dems are about to have a nasty inter-chamber squabble about Senate procedure, with progressives sure to end up disappointed in the end one way or another. Should be fun.
All I need now is for someone to explain to me why Pelosi thinks H.R. 1 can pass in its current form, particularly with Manchin sounding noncommittal. I suppose the idea is that if he and his colleagues can be bullied into reforming the filibuster to make the bill viable, surely they’ll also feel bullied into passing it. Manchin should start demanding changes to it now, early, before he finds himself in a corner.