But now Biden faces an uphill battle. Without reconciliation, which can only be used for certain tax, spending and debt limit bills, Biden confronts a legislative wasteland. Any major initiative, whether it addresses voting rights or climate change, is likely to face McConnell, who has proven he is willing to do whatever is necessary to obstruct the Democrats’ agenda, even if this means damaging the strength of the Senate as a deliberative institution. With the current 50-50 split in the Senate, Democrats will find it all but impossible to meet the 60-vote threshold to advance legislation.
Democrats must seriously consider reforming or abandoning the filibuster if they want a chance at staying in power, building on the success of the American Rescue Plan and tackling the rest of Biden’s agenda. While McConnell threatened to pursue a scorched earth policy if Democrats end the filibuster and block all of Biden’s initiatives, Democrats should recognize that that’s exactly what he’s going to aim to do anyway.
The filibuster is not enshrined in the Constitution. It is a tradition adopted in the 19th century that allows the minority to block bills. Filibusters were primarily used to block civil rights legislation until the 1970s — which is why the Leadership Conference on Civil Rights considered ending the filibuster one of its key goals in 1951, alongside criminalizing lynching and ending segregation. While filibusters often conjure images of politicians holding the floor of the Senate for hours, the mere threat of a filibuster is now enough to thwart legislation.
If Democrats manage to reform or do away the filibuster and hold onto power in the midterm elections, they will be able to move forward with a bold mandate to enact Biden’s version of a New Deal or Great Society. Even though progressives and moderates will continue to disagree on the finer points, the shared goal of producing substantive legislation would be enough to hold the Democratic factions together.
If Democrats fail to do this, Biden’s only recourse will be to use his executive power. He will have to follow the path of his predecessors by using executive orders to make changes within existing laws — rather than relying on Congress to craft new ones. The problems with this, however, are multifold. As every president in modern history has learned, governing by executive power is transitory, given how easily the next administration can roll back those orders. Ultimately, it is not an effective way to deal with the long-term challenges that our nation faces.
Once the legislating slows down, tensions that exist within the Democratic Party will inevitably surface and intensify. Moderates will inevitably urge Biden to take a page from the Clinton years and focus on small, narrow measures that might win a handful of Republican votes. Progressives, on the other hand, will push the President to continue taking bold strides, pressure centrists such as Senator Joe Manchin to stick with the party and try to build public consensus for ambitious changes. If Congress is stalled, the odds that these fights will intensify and spill out into the public will only increase.
Democrats can’t afford to leave the filibuster in place. It’s devastating to the institution of Congress because it has created a supermajority requirement on every piece of legislation. In an era of intense polarization, and a Republican Party determined to obstruct, getting bills through the upper chamber is essentially impossible. The filibuster also cripples the ability of Senators to deliberate and govern, while also benefiting a Republican Party that is content to see Washington in gridlock.