Kirsten Gillibrand Defends Filibuster: “If You Don’t Have 60 Votes Yet, It Just Means You Haven’t Done Enough Advocacy”

Maintaining the 60-vote threshold in 2021 would set Democrats up to fail to deliver on campaign promises, leading to the chance of a 2022 midterm wipeout.

TROY, NY - JANUARY 16: Sen. Kirsten Gillibrand (D-NY) and her mother Polly Edwina Rutnik arrive at the Country View Diner for a media availability to announce she will run for president in 2020, January 16, 2019 in Troy, New York. Last night on The Late Show, Gillibrand told host Stephen Colbert that she has formed an exploratory committee for her White House run. (Photo by Drew Angerer/Getty Images)
Sen. Kirsten Gillibrand, D-N.Y., arrives at the Country View Diner in Troy, N.Y., on Jan. 16, 2019, to announce her run for the presidency in 2020. Photo: Drew Angerer/Getty Images

With progressive momentum building ahead of 2020, the range of bold agenda items a new Democrat-controlled government might work toward continues to expand. Most recently, a “Green New Deal” has joined free public college, “Medicare for All,” and a significant hike in the minimum wage as likely policy priorities. Early polls show that essentially any Democratic challenger to President Donald Trump would top him in a head-to-head contest.

But that energy is on a collision course with the U.S. Senate, where a 60-vote threshold is needed to overcome a filibuster, which was once an opportunity for open-ended debate, but now is merely used to block a vote on legislation that doesn’t have the support of 60 senators. That threshold, if it remains in place, would mean that all of the progressive ideas being generated will remain ideas. The 47-member Democratic Caucus would need to pick up three seats just to win back the Senate. That will be a challenge in itself, but grabbing 13 is effectively out of the question.

That procedural obstacle has increasingly turned the attention of Democratic activists to the existence of the filibuster itself. They’re calling for it to be abolished entirely, and putting the question to presidential contenders, because that’s likely the only way a Democratic majority could pass major legislation two years from now. It’s also about self-preservation: Maintaining the 60-vote threshold in 2021 would set Democrats up to fail to deliver on promises made during the campaign, leading to the possibility of midterm wipeouts, with nothing to show for their time in power, in 2022.

There’s precedent for narrowing the reach of the filibuster. In 2013, then-Senate Majority Leader Harry Reid reformed Senate rules to eliminate the use of the filibuster to block judicial nominations short of the Supreme Court. To change the rules, Reid needed a simple majority of 50 votes, which he got only after years of pressure from progressives pushed the Senate to act.

In 2017, in order to confirm Neil Gorsuch, Senate Majority Leader Mitch McConnell, R-Ky., eliminated the filibuster for Supreme Court justices. That element of the filibuster died with little more than a whimper in the news.

Not all Senate legislation requires 60 votes. A process known as budget reconciliation allows for a 50-vote threshold under certain circumstances. In 2010, Democrats relied on it to push through pieces of the Affordable Care Act after Republicans won an upset special election in Massachusetts, depriving Senate Democrats of their 60-vote, filibuster-proof majority. (The bulk of the ACA wasn’t eligible for the reconciliation procedure, but had already been passed by the Senate before Republican Scott Brown was sworn in; reconciliation was then used for some minor fixes.)

Republicans used reconciliation to bypass the filibuster in 2017 to pass Trump’s tax cut and in their effort to repeal the Affordable Care Act. Enough Senate Republicans support keeping the filibuster in place that McConnell had no ability to eliminate it, even if he had wanted to. But reconciliation comes with strict limits on what kinds of policies can be passed using the process; it’s extraordinarily complicated, but the gist is that a policy is only compliant with reconciliation if it has a significant budget impact. An attempt to ban abortion, for instance, wouldn’t qualify for consideration under reconciliation.

But in general, the Republican agenda — to repeal Democratic policies, cut taxes, and broadly deregulate — can be accomplished using reconciliation, which sets up an asymmetrical dynamic where progressive legislation needs 60 votes to pass, but just 50 to be repealed. (For instance, it took 60 votes to pass the ACA, but Republicans tried to repeal it with just 50.)

“Pod Save America” host Jon Favreau asked Sen. Kirsten Gillibrand, who announced her candidacy for president last week, about eliminating the filibuster during an interview that aired on Tuesday. Favreau, a former speechwriter for President Barack Obama, is not typically associated with the more radical wing of the party, and his question is a reflection of how broad the consensus is among Democratic activists that the filibuster needs to go.

“As president, would you push — hopefully — Majority Leader Chuck Schumer to get rid of the filibuster so you could pass something like ‘Medicare for All’ or a Green New deal?” Favreau asked.

Gillibrand, who is running as one of the more progressive candidates in the 2020 presidential race, demurred, an indication that the push to abolish the filibuster has a long way to go.

“The filibuster is mostly gone now, so it barely exists,” she said, going on to defend 60-vote threshold as a good thing because it forces the two parties to work together.

“I think it’s useful to bring people together, and I don’t mind that you have to get 60 votes for cloture” she said, using a procedural term for overcoming a filibuster and ending debate on the Senate floor. “That’s not an unreasonable goal, because if people don’t feel like you’re done with debate, and that they haven’t been heard enough, maybe you should debate a little more. And I think government only works when people who care deeply stand up and fight for what they believe in, and know how important their voices are; and so if you’re not able to get 60 votes on something, it just means you haven’t worked hard enough, talking to enough people and trying to listen to their concerns and then coming up with a solution that they can support. And so I’m not afraid of it one way or the other.”

Favreau pressed Gillibrand further. “So you would be open to getting rid of it for something big like ‘Medicare for All’?” he asked hopefully.

“I don’t think we should have gotten rid of it for the Supreme Court justices, because they’re lifetime appointments, and I do think you should be able to earn at least 60 votes,” she said. “I’ll think about it. I believe I can work well under either system, because if you don’t have 60 votes yet, it just means you haven’t done enough advocacy and you need to work a lot harder.”

In short, Gillibrand’s argument is that if advocacy groups and their allies in Congress can’t produce 60 votes for a bill, that’s because they haven’t done enough to convince people that it’s good policy. That’s a romantic vision for government, but it doesn’t align with the reality of a partisan Senate in the 21st century. Republican senators — and, indeed, no small number of Democrats — are not in opposition to a Green New Deal or “Medicare for All” simply because they haven’t debated them enough or thought them through. Entrenched interests are fundamentally opposed to those policies, and come a Democratic majority, they will use their influence to keep the Senate short of the 60-vote threshold. And then there is the GOP’s partisan interest in simply making sure that Democrats can’t enact an agenda.

That would allow Democrats who might prefer not to see those policies enacted to blame the GOP opposition for their failure to get enough votes. John McDonough, a former Senate staffer who played a key role in drafting the Affordable Care Act, wrote in his book “Inside National Health Reform” that some Democratic senators were hoping in late 2008 and early 2009 the party’s majority did not reach 60 members, so that the party’s progressive wing wouldn’t have high expectations for health care reform.

Ezra Levin, a co-founder of Indivisible, which is also not typically associated with the party’s bomb-throwing wing, called Gillibrand’s answer insufficient. “Senate conservatives used the filibuster to block civil rights legislation for decades. The idea that advocates just need ‘to work a lot harder’ is just wrong. Stop letting a tiny extremist minority block progress,” he said. He noted elsewhere, in the context of filibuster reform, that Sen. Chris Coons, D-Del., a strident defender of the filibuster, is up for re-election in 2020.

Opposition to the filibuster is an increasingly common view everywhere except inside the Senate. Rep. Brendan Boyle, D-Pa., who is a member of the Congressional Progressive Caucus but also the more centrist New Democrat Coalition, also panned Gillibrand’s answer.

Brian Beutler, who writes for Favreau’s Crooked Media, previously pressed Sen. Sheldon Whitehouse, D-R.I., on the question of eliminating the filibuster. Whitehouse is one of the senators who is most outspoken about the risks of climate change. Whitehouse suggested that doing so would be politically impractical, and encouraged the use of reconciliation for a Green New Deal-type project instead.

“Pod Save America” is widely listened to by Democratic primary voters — an average of 1.5 million people listen to each episode — and all of the 2020 candidates are expected to be interviewed on the program. Favreau told The Intercept that he plans to ask each what they would do to overcome obstruction. “I think one of the most important questions Democratic presidential candidates can answer is how they intend to pass a progressive agenda in an environment where Republicans have refused to cooperate or compromise since 2009. We hope to ask all the candidates that question,” he said.

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