“It is time for the Senate to debate the legislative filibuster, so senators and our constituents can hear and fully consider the concerns and consequences.”
That line is the one interesting pull from Senator Sinema’s WaPo Op-Ed in what is otherwise a rerun of her previous statements in support for the filibuster. She warns against riffing back and forth between extremes when the Senate changes hands. She lauds the spirit of cooperation, as evidenced by the (stalled) bipartisan working groups on infrastructure and police reform. She positions herself as an independent voice for Arizona — a swing-state of swing states. I read the piece with some intense frustration, as, like many folks, I’ve considered all those arguments and see that Mitch McConnell has played us into a corner and it’s time to change the rules.
But that line is interesting — in that it does work on three different fronts.
First, it is very clearly calling out Senator Sinema’s frustration with Democratic Senators who support keeping the filibuster, but are letting her and Senator Manchin take the heat. She would like to see a debate on keeping the filibuster so that more centrist Dems would be called out of the shadows and she’d look like less of an obstructionist to the left. If nothing else, it would be a way to defend her flank for the now-almost-inevitable primary challenge she’ll face in 2024.
Second, my sense is that we discount the first-level obtuseness of the statement that many will focus upon. The obvious problem with Sinema’s statement that the time has come to debate the filibuster, is that the filibuster can be used to prevent debate even on the filibuster. She surely knows that and knows that it is even likely, were a motion to challenge the filibuster brought to the floor. So what’s she getting at?
That brings us to the third level of interest: What debating the filibuster would actually mean, and how you’d get around a filibuster on debating the filibuster.
There are a few ways to change the rules that guide the Senate. The first is a straight vote, but it requires a 2/3 majority of those present and voting. So, if everyone shows up, that’s 67 out of 100. It will not happen. Ever.
The second and more likely scenario is colloquially known as “the nuclear option,” or — more wonkishly — as “reform by ruling.” It involves a Senator (likely the Majority Leader) raising a “point of order” during debate that a Senate rule is being violated. The presiding officer — an ally of the Senator raising the point of order — would then rule AGAINST the Majority Leader on the grounds of precedent, at which point a vote would be called to rule on the ruling by the presiding officer.
THAT vote would require only a majority rule.
So, under this scenario, IF Sinema could somehow manage to bring about a Senate debate on the filibuster, and the Republican caucus filibustered opening debate on the filibuster, it could give Schumer an opportunity to raise a point of order that the filibuster — in its current form — is a violation of Senate rules. His point of order could be crafted to say that Senate rules actually demand a filibuster be a talking filibuster rather than the pocket filibuster of today. The presiding officer would then rule that the filibuster of today is fine, based on the precedent of having used it for the past few decades, and the Majority Leader would call for a vote — at which point a majority of Senators could vote to reinstate the OLD filibuster rule, claiming that they weren’t weakening the filibuster, but strengthening it.
Now, I don’t know if Senator Sinema has thought all this through, but she’s smart enough to see the play. It’s a very long shot, and perhaps I’m being wildly optimistic, but the sun is shining today and I’m going to choose to be hopeful. If I end up disappointed by centrist Democrats, it certainly won’t be the first time.
In any case, love to you all.