Opinion | Senate Democrats should kill the filibuster — even if Trump wins

If Democrats retain control of the Senate after this fall’s elections — and as of today that’s still a big “if” — the filibuster as we know it may finally be toast next year. Despite the 60-vote threshold’s being antidemocratic, extraconstitutional and antithetical to the founders’ vision, it has taken years of hemming and hawing for Democrats to reach this point. With its potential demise, the country can finally start to get back on track — or at the very least force our lawmakers to be honest about their vision for the future.

In the last Congress, two Democratic senators stood in the way of filibuster reform: Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the latter of whom later switched to be an independent. They argued that the filibuster is a method of forcing bipartisanship on issues and that it encourages more debate between senators, neither of which holds water when you look at the history of the filibuster. Thanks to Sinema and Manchin, Democrats had to leave many wins on the table, including subsidized child care for struggling parents, codifying Roe v. Wade and much-needed protections for voting rights. Those big-ticket items wouldn’t have just made millions of Americans’ lives better, but they also might have helped Democrats this November.

Any Democratic plan for reform would require majority support: either 51 senators or, should Vice President Kamala Harris be re-elected this fall, 50 votes plus the vice president’s tiebreaking vote. As things stand, the Democrats’ chances of holding the Senate aren’t ideal; the party is defending nearly twice as many seats as Republicans are, including three in states Donald Trump has won twice. But both Manchin and Sinema are retiring this term, and, as NBC News has reported, Democratic candidates looking to join the Senate’s ranks are all in on reform:

The timing of filibuster reform might seem risky: Not only is control of the Senate a toss-up, but so is control of the White House and the House of Representatives. But it’s still worth pushing filibuster reform — even if the GOP keeps the House and Trump returns to the presidency.

It’s a task that will be made slightly easier as Sen. Mitch McConnell, R-Ky., one the filibuster’s foremost defenders, steps down as the leader of the GOP caucus. In contrast, Trump has pushed repeatedly to have the GOP end the filibuster when it held a trifecta in the first half of his term. While the main candidates to replace McConnell also seem dead set on continuing his legacy on that front, not all Republicans are 100% noes. “The filibuster has meant different things over time,” Sen. Josh Hawley, R-Mo., told NBC News. “And there are different ways to implement it. So we could talk about how the filibuster is structured. Do you have to hold the floor or not, etc. We could probably have a conversation on that.”

Hawley was referring to one option short of totally abolishing the filibuster: forcing senators to go back to the “talking filibuster” as seen in the film “Mr. Smith Goes to Washington.” That’s how the filibuster worked for most of its existence and how many Americans still assume it works. Senators would once again have to hold the floor to prevent legislation from moving forward with a majority of votes, rather than the current method, which requires only that a senator’s staffer send an email. Shifting to a talking filibuster would at least show effort from the senators and willingness to stand up and argue for or against whatever bill is being voted on before allowing the majority's will to carry the day.

Also, as I argued back in 2021, the current version of the filibuster rule helps only Republicans. Democrats are far likelier to push for programs and policies that require new structures and funding. Meanwhile, the GOP, by and large, has abandoned legislating as the primary means of governing. Instead, Republicans rely on stacking the federal courts and otherwise handing over the reins to the White House.

You don’t have to take it from me. Here’s what Sen. Ron Johnson, R-Wis., told NBC News in explaining his support for the filibuster:

The filibuster, in his own words, is a roadblock against Democratic policies and tyranny, but GOP priorities can just go through the presidency. In this way, filibuster reform, even during Republican control, would help remove an argument in favor of Trump’s governing solely through executive action. Republicans opposed to broadly unpopular policies — like, say, a nationwide abortion ban — wouldn’t be able to hide behind the filibuster, as Manchin and Sinema did across the aisle, when only a simple majority would be required to pass legislation.

The legislative gridlock we’ve seen has been a major reason the last three presidents have worked to find whatever loopholes possible to act without Congress, especially on immigration. The filibuster is thus a win-win for autocratically minded Republicans. When they’re in the minority, it allows them to block major legislation; when they’re in the majority, it serves as an excuse to have the White House move unilaterally. It’s in Democrats’ — and the country’s — best interests, then, to support changes to the filibuster, no matter who wins this fall.

This article was originally published on MSNBC.com