Sinema is wrong about the filibuster

Kyrsten Sinema has made bipartisanship her calling card. Virtually every press release she sends out describes whatever action to which she is calling attention as “bipartisan.” The word is frequently used multiple times.

She recently took a tough position, and heat, that strongly buttressed her professed commitment. She became the second Democratic senator, after West Virginia’s Joe Manchin, to publicly proclaim that she wouldn’t vote to eliminate the virtual filibuster. That gave House Minority Leader Mitch McConnell the reassurance necessary to agree to rules governing the operation of an evenly divided Senate, thus giving Democrats the reins.

While Sinema deserves a lot of credit for taking the political heat for her timely public proclamation, she is wrong that the virtual filibuster promotes bipartisanship. And she is likely to face a second, more concrete test, if Democrats follow through on plans to grossly misuse the budget reconciliation process to evade the virtual filibuster.

Contrary to the defenders of the virtual filibuster, Democrat and Republican, it is not a long-standing, historic Senate practice. It’s a relatively new development.

In a real filibuster, senators seize the floor and talk and talk to prevent the body from voting. Even that wasn’t part of Senate procedure from the beginning. The first real filibuster wasn’t until 1837.

Real filibusters have been rare. And they just delay a vote, not prevent the majority from working its legislative will. If the majority is willing to wait out the real filibusters, it will prevail.

In recent times, real filibusters have been replaced with virtual ones. No one actually filibusters. Instead, the minority pretends that it intends to filibuster and the majority pretends to believe it.

This has evolved into an assumption that every bill considered by the Senate is being filibustered. So, before moving on to consideration of the legislation, cloture of a nonexistent filibuster has to be passed. And rather than a majority being required for cloture, an extraordinary majority of 60 votes is necessary.

In essence, an extraordinary majority is now required for anything of consequence to pass the U.S. Senate. That’s contrary to the clear intent of the Constitution, which specifies when a supermajority is required, such as an impeachment conviction, ratifying treaties or submitting constitutional amendments to the states. By inference, all other business was to be conducted by a simple majority.

Rather than promoting bipartisanship, the virtual filibuster promotes gridlock, as recent experience amply demonstrates. The minority can prevail if it holds together. That creates pressure not to compromise. If the majority could pass legislation anyway, that would create incentives for minority party members to cut deals. And it would reduce the pressure on majority members not to break ranks and make deals with minority members.

Being blocked from eliminating the virtual filibuster, Democrats are considering a gross abuse of the budget reconciliation process to pass things over Republican objections, such as President Joe Biden’s fiscally irresponsible COVID-19 proposal.

The Budget Act of 1974 was intended to provide some order to how Congress enacts the federal budget.

The new fiscal year begins in October. Congress was to adopt a budget resolution by April 15, giving broad fiscal parameters. The House is supposed to pass appropriation bills within those parameters by June 30. That gives plenty of time to work out a final agreement with the Senate and the president prior to the start of the fiscal year.

Irrespective of which party is in charge, that never happens. Instead, for years, there has been a series of ad hoc deals made just before or just after government shutdowns.

Relevant to this discussion is what is known as reconciliation. Something deemed as implementing part of the budget resolution isn’t subject to the virtual filibuster. It can be passed with a simple majority.

We are now already in the fifth month of the current fiscal year. Congress already passed the ad hoc appropriations necessary to get to end of it, in September. There was no budget resolution passed for this fiscal year.

So, Democrats are talking about passing one, although the deadline for doing so was 10 months ago. And then passing Biden’s $1.9 trillion COVID-19 relief package with a simple majority vote by calling it reconciliation.

Both parties have ignored the Budget Act and its deadlines. And both parties have stretched the use of reconciliation to evade the virtual filibuster. But this is a real perversion of the process. No one truly committed to bipartisanship could go along with it. This could be Sinema’s true test.

Irrespective of which party is in control, the Constitution provides for the Senate to conduct most of its business by a simple majority. Allowing that honestly, through abolishing the virtual filibuster, is vastly preferable to perverting the budget process.