Commentary: Will Senate Democrats Eliminate the Filibuster Just to Nationalize Election Laws Under H.R. 1?

by Robert Romano

After sweeping the trifecta of the House, Senate and White House in 2020 with the slimmest of majorities, Democrats have a diminishing window of opportunity to enact their agenda and keep their political base happy.

After all, majorities do not last forever, and in midterm elections from 1906 to 2018, the party that occupies the White House usually loses on average 31 seats in the House, and about three seats in the Senate. And with just a 10-seat majority in the House and a zero-seat majority in the Senate with it all tied, 50-50, the odds Democrats lose at least one legislative chamber in 2022 is exceptionally high.

President Joe Biden and Democrats ran on a platform of enacting a public option for health insurance, raising taxes, moving to net-zero carbon emissions in energy production by 2035 and by 2050 for everything else including transportation, legalizing millions of illegal immigrants including a pathway to citizenship, passing his $1.9 trillion Covid stimulus relief legislation and election law reform.

Now, to get some of those things done, Democrats are resorting to the use of budget reconciliation, in this case on the $1.9 trillion Covid spending bill, which averts the use of the Senate filibuster and allows legislation affecting the budget to pass the Senate with a simple majority. Next year if not sooner, it is likely the same procedure will be utilized to eliminate portions of the Trump tax cuts.

On carbon emissions, Biden can partially achieve his agenda through more regulations that would kill off the last of the coal-fired electricity-producing power plants or oil home-heating furnaces. Re-entering the non-binding Paris Climate Accords was an executive action, and more symbolic than anything else.

But on other items to do with the public option, creating a path to citizenship for illegal aliens and changing election law would be subject to Senate cloture rules, requiring 60 votes to get much of anything accomplished. The problem for President Biden and Senate Majority Leader Chuck Schumer is that would mean they need at least 10 Senate Republicans to pass any meaningful legislation.

So, either Democrats are going to eliminate the Senate filibuster, or else they are not going to get much done legislatively in time for the 2022 Congressional midterms, including on H.R. 1, House legislation being considered that would nationalize federal elections, or other ideas including amending the Judiciary Act of 1869 to pack the Supreme Court by increasing membership beyond nine justices.

H.R. 1 would require states to automatically register residents to vote, turn the Federal Election Commission into a partisan entity controlled by the White House party, require the use of absentee ballot drop boxes, eliminate state restrictions on mail-in voting, require same-day voter registration and gut state voter identification laws.

Almost all of those provisions would appear to favor Democrats in elections, with disproportionate majorities of immigrants favoring Democrats and Democrats making greater use of absentee and mail-in balloting in the 2020 elections than Republicans did. In short, there would be almost no political incentive for Republicans to support such legislation.

Therefore, the only way for Democrats to pass it would be to abolish the Senate filibuster. But Senators Joe Manchin (D-W.Va.) and Kirsten Sinema (D-Ariz.) appear to have already foreclosed that possibility.

“I will not vote in this Congress, that’s two years, right? I will not vote [to abolish the filibuster]… And I hope with that guarantee in place he will work in a much more amicable way,” Manchin said in an interview last month.

Sinema for her part through her office said she is “not open to changing her mind” about abolishing the filibuster, which would facilitate consideration not only of legislation to pack the court but also other issues.

For some, given the likelihood of Republicans reclaiming the House and maybe even the Senate in 2022, that is the reason for Democrats to just go ahead and eliminate the filibuster—to get as much of their agenda enacted as possible.

On the other hand, Democrats would then have to hope they’d stay in power forever, and given the likelihood that the GOP gets either the House or Senate or both in 2022, that would be the reason not to.

Because then, the next time Republicans have the House, Senate and White House — as soon as perhaps 2025 — they could, for starters: repeal Obamacare, eliminate family-based preferences in immigration law, build the wall, pass national concealed carry laws for firearms, implement a national voter identification law, remove illegal aliens from voter rolls, enact entitlement and welfare reform, repeal or reform the Administrative Procedures Act, pass laws against automatic union dues deductions, reform the Foreign Intelligence Surveillance Act, or repeal or reform the Clean Air Act, the Clean Water Act and the Endangered Species Acts — and so forth.

Nothing lasts forever, and certainly not Congressional majorities. Republicans will win elections again — very soon. Meaning, Democrats wishing for Senate Majority Leader Schumer to simply eliminate the filibuster, thinking they can never lose, should be careful what they wish for.

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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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