Senate Democrats concede there is considerable risk to doing away with the filibuster to codify abortion rights, but also suggest they are likely to try to do so if they get the chance in 2025.
The risk is that once an exception is made for abortion rights, exceptions will be made by a future Republican Senate on a host of issues.
But Democrats say codifying abortion rights and other key legislative priorities is worth the risk.
“There’s real risk anytime there’s debate about rules and procedures in the Senate. It becomes very bitter,” Sen. Peter Welch (D-Vt.) said. “So yes, there is risk.”
“The other problem is there’s risk in having a Senate that’s more dedicated to rules and procedures than it is to getting things done,” Welch continued. “It’s very dangerous for the Senate as an institution to simply not address extraordinarily important issues like reproductive freedom, like voting rights.”
Senate Majority Whip Dick Durbin (D-Ill.) agreed on the potential long-term danger but stressed that Democrats have no choice given how the chamber has been operating.
“As far as I’m concerned, we should be discussing the rules going forward. We’re now in a dystopian situation in the Senate where we do very little, if any, legislating,” he said.
Vice President Harris’s call to do away with the 60-vote threshold to codify Roe v. Wade brought the issue back to the forefront for Democrats.
But to do so, Democrats will have to have Harris defeat President Trump, win back the House and retain the Senate majority.
None of those steps are easy, and the last might be the biggest hurdle. Democrats face a tough Senate map that has them defending seats in states where Trump is expected to win easily. According to The Hill and Decision Desk HQ’s latest forecast, Republicans have a 70 percent chance of winning back the majority.
Nevertheless, Democrats are peeking ahead at what could be if they strike electoral gold and with Sens. Joe Manchin (I-W.Va.) and Kyrsten Sinema (I-Ariz.), who have thwarted previous attempts to alter the filibuster, set to depart office.
“We would have Roe v. Wade as law of the land, comprehensive immigration reform, better gun safety laws,” said Sen. Elizabeth Warren (D-Mass.), one of the foremost proponents of nixing the filibuster. “And we’d just be warming up.”
“Those are things a majority of the American people want and the majority of people in the Senate want, but we never get there because the 60-vote threshold means that a minority controls the votes that make it through,” she continued. “So why keep this hanger-oner?”
Harris’s comments also lit a fuse under Senate Republicans, who Democrats believe would not hesitate to change the rules if they win the White House and the entire Congress themselves.
GOP lawmakers are quick to note former President Trump urged them to do so numerous times during his first term in office and was rebuffed at every turn by Senate Minority Leader Mitch McConnell (R-Ky.).
The outgoing GOP leader this week heaped criticism on Harris and Democrats for their planned maneuver, saying in an interview that such a change would “turn American into California.
“A Senate that can steamroll a legislative minority to codify Roe v. Wade or enshrine the lunacy of the Green New Deal into law is a Senate that will drive a stake through liberal hopes as soon as the political winds change,” McConnell said on the Senate floor Wednesday, pointing to Harris’s calls in past years to nix the 60-vote threshold for those proposals.
McConnell has vowed in recent years a “scorched earth” response from the GOP that would allow for “zero input” from Democrats if they nix the filibuster. Among the issues he has name-checked are nationwide right-to-work, defunding Planned Parenthood and sanctuary cities, new energy legislation and “sweeping new protections” on abortion.
The probability of this type of boomerang from one side to the other gives some Democrats pause, especially after then-Senate Majority Leader Harry Reid (D-Nev.) lowered the threshold for lower-court nominees. That ultimately helped transform the Supreme Court in a matter of years after Republicans changed the rules for the high court.
“I think it would be good to have a national abortion [law] to protect the reproductive freedom of women, and I think we should try to get it, but I don’t think the first procedure would be to change the rules of the Senate,” Sen. Jack Reed (D-R.I.) said.
But it still has not dissuaded many.
“I’m not that concerned about it,” Sen. Tim Kaine (D) said, pointing to his time as governor of Virginia where both legislative houses operated by simple majorities. “It worked fine. Sometimes could you make a mistake? Sure. … But the current way the filibuster is abused leads to inaction and gridlock and I think that sends a message about sort of national inaction and gridlock and the inability to deal with problems of the day.”
“As I’ve weighed the perverted version that we now follow versus the version that the country followed for 200-plus years, I think the old way was better,” he added.
The biggest question is how far Democrats could even go if they keep hold of the chamber, which is predicated on Sen. Jon Tester (D-Mont.) keeping his seat in the ruby red state.
The Montana Democrat told Semafor recently he supports what Kaine pointed to: a talking filibuster that requires senators to hold the floor, which was popularized in the 1941 movie, “Mr. Smith Goes To Washington.” He also indicated he is not supportive of scrapping the filibuster entirely.
“My stance is this: We need to change the filibuster into a talking filibuster,” he said. “We should not eliminate the filibuster.”
This, however, is not calming the nerves of Republicans, who hope to stop Democrats in their tracks at the ballot box.
“They’ve made it abundantly clear,” said Sen. John Thune (S.D.), a leading contender to replace McConnell as GOP leader next year. “Once you go down that path, there’s no turning back.”
“They’ll rue the day they do it, and hopefully they won’t have that opportunity — at least not for a while,” he added.
