Weaken the filibuster before a wave election?
Do Democrats never learn from their mistakes?
President Joe Biden is calling on Senate Democrats to bypass the filibuster to pass legislation codifying Roe v. Wade — even though he knows full well he does not have the votes to make this happen. Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona don't support weakening the filibuster. Biden is raising expectations among his base that he will almost certainly dash.
But even if he did have the votes, it would be foolish to weaken the filibuster just months before a wave election that is expected to sweep Democrats out of power. The president's party has lost, on average, 27 House seats in midterm elections since 1946. Biden has been the most unpopular president since the modern polling era began with Harry S. Truman. Republicans are all but certain to win back the majority in the House, and need only a net gain of one seat to take back the Senate.
It's possible that Democrats could somehow manage to hold off a GOP Senate takeover in 2022, but the field is even more tilted toward Republicans in 2024. Democrats will be defending 23 seats, while the GOP will be defending just 10. So the odds are overwhelming that if Republicans don't win back the Senate this year, they will do so in 2024.
Why on earth would Democrats want to do anything to weaken the filibuster? Let's say they succeeded in using a filibuster carve-out to codify Roe. Two years from now, Republicans could use that same carve-out to reverse the Democrats' action and pass a national abortion ban in its place.
History shows that partial filibuster carveouts don't last. During the Obama administration, then-Senate Majority Leader Harry M. Reid, D-Nev., eliminated the filibuster for all federal judicial appointments except Supreme Court nominees. That set the precedent for Republicans to eliminate it for Supreme Court justices as well when Trump came to power.
If Democrats dilute the filibuster by setting it aside when it comes to their key priorities, that will set a precedent for Republicans to eliminate it entirely when they take over. If Democrats like the string of victories the Supreme Court's conservative majority handed down this term, they will love what a Republicancontrolled, filibuster-free Senate will do.
They should look back on all the legislation they stopped Republican majorities from enacting because of the filibuster — from entitlement reforms to lawsuit reforms, election reforms, border-wall funding, an end to sanctuary cities and restrictions on cash bail, the elimination of restrictions on oil and gas exploration, national rightto-work legislation, expanded gun rights and the defunding of Planned Parenthood — and then imagine all that and more being enacted by simple majority vote when Republicans regain control of both Congress and the presidency.
Senate Democrats would eliminate the legislative filibuster without hesitation were it not for Manchin and Sinema. They justify this legislative vandalism by arguing that Senate Minority Leader Mitch McConnell, R-Ky., will eliminate the filibuster anyway when Republicans take power, so they might as well do it now while they have power. There is no evidence to suggest that he would. Quite the opposite, McConnell wisely refused to scrap this rule at a time when Republicans controlled the White House, Senate and House of Representatives, despite President Trump's repeated urging that he do so, because, McConnell said, “There are no permanent victories in politics.”
Biden once understood this. Back in 2005, when Democrats were filibustering President George W. Bush's judicial nominees, then-Sen. Biden took to the Senate floor to warn Republicans against eliminating the filibuster to get them through. “You may own the field right now, but you won't own it forever,” Biden said. He'd do well to remember those words, and take his own advice.