Will Democrats eliminate the filibuster in the Senate? What to know

New Senate Majority Leader Chuck Schumer, D-N.Y., has a problem. Progressives and the left expect big things now that Democrats control the White House, House and Senate. Years of bills "stacking up" on the desk of new Senate Minority Leader Mitch McConnell, R-Ky., are gone. Democrats want gun control measures. A big COVID bill. Climate change legislation. A new immigration bill.

But there, is only so much you can do with a 50-50 Senate. And, only so much you can do when the minority party can still block legislation via the filibuster.

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Enough, say liberals. Terminate the filibuster. Republicans stymied Democratic initiatives for years. It’s time for legislative action, they say. And some Democrats would like nothing better to exact revenge on McConnell for blockading their priorities for so long.

Now Schumer and McConnell are trying to craft some semblance of a power-sharing agreement for the 50-50 Senate. The hope is that the pact would mirror the accord crafted two decades ago in the last 50-50 Senate. Some Democrats have said Democrats should just ignore the need for a deal. They have the power now. Rule by brute force. That’s why McConnell made maintenance of the legislative filibuster a key tenet of his negotiations.

McConnell may favor of an impeachment trial for former President Trump. But he also knows that an impeachment trial presented him with an ace to play. McConnell could agree to work with Schumer on an organizing resolution for the Senate and also to confirm some of President Biden’s nominees – before a trial. But McConnell isn’t going to give much quarter. He argues that maintaining the legislative filibuster is crucial for the institution. It’s also of paramount important to the minority. And, perhaps most importantly, McConnell knows that if Democrats were to end the filibuster, he scores the best victory of all. He can accuse Democrats of a power grab and weaponize the issue against the other side in the 2022 elections.

Schumer’s path is hard. He must put up a good fight. Liberals are coming for Schumer, demanding results. And, the New York Democrats could find himself with a competitive primary if he doesn’t finesse this or score big wins.

"Mitch McConnell is not going to dictate to us what we will do," said Schumer.

Maybe so. But eliminating the legislative filibuster is complicated. And, anything on this front is predicated on the same thing which dominates every decision on Capitol Hill: It’s about the math. It’s about the math. It’s about the math.

For starters, overcoming a filibuster on legislation requires 60 votes – often twice. Democrats are well short of that marker. Senate Rule XXII (22) governs filibusters. It lays out a mandate for 60 votes to halt a filibuster. Changing any of the Senate’s 44 Standing Rules entails a procedural vote of 67 yeas. An extraordinarily high bar. But the Senate conducts much of its business via precedent. In fact, there’s a voluminous book of Senate precedent which governs Senate practice.

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You may have heard of the "nuclear option." In fact, there were two. In 2013, then Senate Majority Leader Harry Reid, D-Nev., invented the "nuclear option" to lower the bar to end filibusters on executive branch nominees except Supreme Court Justices. With Nuclear Option #1, the Senate established a new precedent, requiring only 51 yeas instead of 60 to curb such a filibuster.

In 2017, McConnell returned the favor. He established a new precedent - Nuclear Option II - dropping the threshold to end filibusters on Supreme Court nominees from 60 to 51.

Note, we didn’t say anything about changing any of the Standing Rules of the Senate to implement these filibuster changes. What Reid and McConnell did with Nuclear Options I & II were establish new precedents for the Senate. The new "precedents" say the Senate only needs 51 yeas to break off filibusters for all nominations.

To get there, both Reid and McConnell backed the Senate into a unique parliamentary posture. Essentially a dead-end. What’s required to create a new precedent is a re-vote on a failed effort to end a filibuster on an underlying issue. For instance, the 2017 nuclear option involved an effort to end debate on the nomination of Supreme Court Justice Neil Gorsuch.

By rule, such re-votes aren’t subject to debate. That’s key. The Senate just can’t drag things out via talking. At this stage, both Reid and McConnell raised a point of order in the Senate that the vote to end filibusters should only require a simple majority. Naturally, the chair ruled against both Reid and McConnell because the rules say otherwise. But what Reid and McConnell did next was important. They essentially appealed the ruling of the chair. It’s often phrased as "Shall the decision of the Chair stand as the judgment of the Senate?"

In other words, the Senate would then vote whether to go along with the chair. Such circumstances only require 51 yeas to overrule the chair. And, if there are 51 senators who vote to reject the ruling from the chair, then the Senate has established a new precedent.

The filibuster would be off.

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In other words, any gambit by Schumer to ditch the filibuster needs 51 votes. In fact, if that critical procedural vote came down to a 50/50 vote, it’s possible that Vice President Harris could break the tie to get rid of the filibuster. And then, you have a new Senate precedent. Any determined majority which could engineer 51 votes could cut off a filibuster.

Schumer faces amazing pressure to do something to advance President Biden’s agenda. Democrats and the left will be apoplectic if Schumer doesn’t do something rash. But, Schumer the math may hinder Schumer.

Are there really 51 (or at least 50) senators who would abolish the filibuster, via Nuclear Option III? There are lots of senators on both sides of the aisle who would like nothing more than to remove the filibuster from the Senate repertoire. However, is that number anywhere close to 50? Democrats could find themselves in the minority again in two years. They will bray about abuses by the majority if they can’t filibuster.

This truly boils down to the math. And most senators view the filibuster as a hallowed prerogative.

And even if they wanted to stamp out the filibuster, moderates like Sens. Kyrsten Sinema, D-Ariz., Joe Manchin, D-W.Va., Mark Kelly, D-Ariz., Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska could cede tremendous power if they supported eliminating the filibuster. This is a coalition of senators in the middle of the field. Politically, it’s not in their interest to get rid of the filibuster in this environment. They’re in play on every vote. They’re the kingmakers. They can make or break every bill. One may even throw in Sen. Mitt Romney, R-Utah, into this group.

Schumer is hamstrung by having the most narrow of majorities – thanks to Vice President Harris. But not a practical way to deliver big results. The math simply doesn’t work. And, even if Schumer got the math to work to end the filibuster, the math may not hold on every roll call vote. Rarely does a roll call vote go by where at least one or two senators fail to toe the party line.

Moreover, the current scrap between Schumer and McConnell serves as good politics for both of them. Granted, McConnell has a better hand to play than Schumer. But the duo can use one another as a foil. Schumer can blame McConnell if the Senate can’t go as far as liberals want. And, McConnell can continue to blast Schumer and Democrats when they do go too far.

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Schumer and McConnell have a symbiotic relationship in this Congress. McConnell knows he can demand certain things from Schumer because Schumer needs McConnell to accept parts of various proposals. They can lash each other publicly because it helps them navigate their own internal politics.

Unless something strange happens, the math isn’t there - yet – to end the filibuster.

And how will we know if Schumer has the votes to extinguish the filibuster? Very simple.

He’ll probably just do it.