Democrats on killing the filibuster: ‘Implausible’

Source: By Adam Aton, E&E News reporter • Posted: Monday, September 28, 2020

A looming Supreme Court fight threatens to further erode the Senate’s rules and customs, but Democratic senators won’t say if they’ll harness that dynamic if they take the majority.

President Trump on Saturday nominated Judge Amy Coney Barrett to the high court, giving Republicans the chance to lock in a 6-3 conservative majority before Election Day. That lineup could make the Supreme Court hostile terrain for climate policy for an entire generation.

In response, Democrats are plotting ways to stall her confirmation vote. But structural changes that could counterbalance a more conservative judiciary — and make climate policy easier to enact — aren’t on the table yet, according to interviews and remarks from Democratic senators.

A top priority for many progressives is the abolition of the Senate filibuster, a historic obstacle to climate legislation that has mostly sidelined Congress and made federal agencies and the courts the engines of emissions policy.

But several senators said the caucus hasn’t discussed an end to the filibuster, let alone agreed to do it. The reluctance is in spite of recent threats from Senate Minority Leader Chuck Schumer (D-N.Y.) that “everything is on the table.” Some Democrats have warned that such talk during the 2020 election would distract from more politically potent campaign issues, like health care.

Sen. Sheldon Whitehouse (D-R.I.), one of the most outspoken lawmakers on climate, said he didn’t think the court fight has done much to shift senators’ position on the filibuster.

Democrats won’t eliminate the filibuster on principle, he said. They’ll do it when they’re out of other options.

“I think it’s implausible that we would change the filibuster rule before we had a case in which it became necessary,” he told E&E News last week.

Democratic presidential nominee Joe Biden has said he would combine climate policy with an economic stimulus as one of his first priorities for Congress. It might be possible for that package to attract some Republicans, Whitehouse said.

“We’ll see how that goes. [Filibuster reform] might not be necessary. If enough Republicans will join in something bipartisan, then we can do a really robust [climate] bill that’s more durable because it’s bipartisan. If not, we have to be prepared to go anyway, with or without them. ‘With’ would be better, but ‘without’ might require some procedural maneuvers. But I don’t think we should address that until we have a case in front of us,” he said.

Other senators echoed Whitehouse’s assessment and said the Democratic Caucus isn’t discussing it.

“We don’t talk about [the filibuster]; we really don’t talk about it,” said Sen. Sherrod Brown (D-Ohio), a filibuster opponent, in a brief interview last week.

“I’ve heard occasional individuals,” he added, mentioning Sen. Chris Coons (D-Del.), who earlier this year told Politico he wouldn’t let the procedure stymie the agenda of a Biden administration.

But overall, Brown said, “there’s literally no discussion about it.”

Coons himself demurred, telling E&E News that he was focused on the Supreme Court fight and its implications for health care.

Democratic Connecticut Sens. Richard Blumenthal and Chris Murphy likewise dismissed filibuster questions as disconnected from what matters to voters in the upcoming election.

“[The filibuster] is not what the fight is about right now,” said Murphy.

“It is about a Supreme Court nominee who is going to fundamentally change the nation and invalidate health care for 23 million Americans. Questions about Senate rules and procedure, months away and dependent on a whole bunch of hypotheticals — it’s just not where my head is,” he said.

Yesterday, Biden did cast Trump’s nomination as a violation of Senate precedent and an “irreversible step toward the brink.”

But he repeatedly declined to talk about how Democrats might counteract Barrett’s likely confirmation. Instead, he emphasized how the court fight would affect health care.

“That’s the focus,” Biden said. “That’s why I want to make it clear and stay on message here. The clear focus is: This is about your health care. This is about whether or not the [Affordable Care Act] will exist.”

That’s not the unanimous view, though.

Many climate activists long have sought to end the filibuster. It’s what killed the 2009 Waxman-Markey carbon cap-and-trade bill, the last major attempt from Congress to cut greenhouse gases.

Since then, progressives like Sen. Jeff Merkley (D-Ore.) and Washington Gov. Jay Inslee (D) have cast filibuster reform as a climate issue. Now, many climate plans include explicit calls to end the filibuster.

Democrats can promise whatever they want on climate or health care, but it’s all conditional on overcoming the Senate’s gridlock, said Jamal Raad, co-founder of the climate group Evergreen Action.

“As the party that … wants to change things, you have to have a government that can adequately govern, that can actually create new laws and create new structures. And we can’t do that right now with a broken Senate,” Raad said.

Democrats might not want to campaign on procedural issues, he added, but that’s exactly what they’ll find themselves doing in two years if they have to explain to voters why their agenda was stopped by Republican filibusters.

An alternative to eliminating the filibuster’s 60-vote supermajority threshold is to use budget reconciliation, a once-a-year opportunity to pass legislation through the Senate with 50 votes.

But reconciliation has many restrictions, including a requirement that it only deal with matters affecting the federal budget. That leaves a “bunch of question marks” around how useful it could be for climate legislation, Raad said.

The Supreme Court fight has heightened the urgency around a range of progressive ideas. Some also want Democrats to add seats to the Supreme Court or grant statehood to Puerto Rico and the District of Columbia.

“If Republicans confirm Judge Barrett, end the filibuster and expand the Supreme Court,” Sen. Ed Markey (D-Mass.), one of the main Senate supporters of the Green New Deal, tweeted over the weekend.

All of those ideas used to seem more far-fetched. But this year, the ideas have become more mainstream among Democrats.

The biggest change happened over the summer, when former President Obama called the filibuster a relic of Jim Crow. That gave cover for other Democrats to question it.

Biden himself cracked open the door to filibuster reform, saying it would depend on Republican obstruction. And Biden picked as a running mate California Sen. Kamala Harris (D), who said last year that she would nix the filibuster to pass a Green New Deal.

That attitude has started to spread across the Democratic Caucus. Montana Sen. Jon Tester, a moderate Democrat, last week said that his support for the filibuster was getting harder to maintain.

“I think the filibuster serves an important purpose. But I also think that if there’s a lot of stonewalling that goes on, it doesn’t leave me a lot of choice,” he told National Review.

Schumer, speaking last week to progressive campaign volunteers, said climate hangs in the balance of the court fight. But regardless of that outcome, he said, Democrats would use their majorities to push through structural changes.

“We’ll keep a Democratic House. We’ll take a Democratic Senate. And we’ll take the White House,” he said. “And then we will have a big, bold agenda based on climate, based on wealth and income inequality, based on extending democracy that will bring America back.”