The filibuster and its discontents in both parties

Congratulations if that was your guess. The likelihood that many would have made that prediction is small. Nevertheless, that is exactly where Republicans find themselves in the May 26 runoff between Sen. John Cornyn (R-TX) and Texas Attorney General Ken Paxton, who has positioned himself as the 74-year-old, four-term incumbent’s more-MAGA-than-thou challenger.

The ostensible dividing line was over election integrity, which supporters say the SAVE America Act will guarantee. It’s a sprawling elections bill backed by most Republicans in the Senate, but it is stalled by the chamber’s de facto requirement that most legislation needs 60 votes to pass. That is the number of votes required to invoke cloture, end debate, break a filibuster, and allow the bill in question to proceed to a final vote on the floor.

Counting independents who caucus with one of the two major parties, Republicans hold 53 seats to the Democrats’ 47 — a decent majority for these polarized times, but seven votes short of being able to get this bill across the finish line without a level of Democratic support that is just not going to materialize.

Democrats contend that the legislation will disenfranchise many of their voters because of its strict requirements for proving one’s identity and citizenship. Senate Minority Leader Chuck Schumer (D-NY) seldom mentions the bill without calling it “Jim Crow 2.0,” a reference to the racist period when most Southern blacks could not exercise their constitutional right to vote.

Various permutations of this bill have been President Donald Trump’s top legislative priority this year, to the point where he has threatened not to sign other legislation — unless it funds the Department of Homeland Security and ends the partial government shutdown that remained in effect as this story went to press — until SAVE America has been sent to his desk.

Paxton has sought to make the filibuster and the SAVE America Act the latest example of Cornyn not being a reliable passenger on the Trump train.

“John Cornyn is a coward who has refused to support abolishing the filibuster to pass this bill,” Paxton wrote on social media not long after finishing second in the first round of Republican primary voting. “Now, Fake News reporters and the establishment are trying to destroy me with misinformation.”

When Paxton wrote this, there was widespread concern among his supporters that Trump was going to endorse Cornyn to better position the GOP in the general election this November. Trump had indicated he wanted the candidate who did not receive his endorsement to abandon their Senate campaign (the deadline for either candidate to withdraw has since passed). Paxton said in his attack on Cornyn that he “would consider dropping out of this race if Senate Leadership agrees to lift the filibuster and [pass] the SAVE America Act.”

Cornyn swiftly rejected Paxton’s characterization of his views. “Contrary to fake news in the twitterverse: I have supported the Save America Act from day one,” he wrote on X. “I will happily support the ‘talking filibuster’ if that’s what it takes to pass this into law.” He tagged Trump in the post. Cornyn later expounded on his evolving thoughts about the legislative filibuster.

“Today, Democrats are weaponizing the Senate’s rules to block the SAVE America Act, defund the Department of Homeland Security and hurt the American people — all to spite President Donald Trump,” Cornyn wrote in a March 11 op-ed for the New York Post. “But they say openly that if these same rules ever get in Democrats’ way, they won’t hesitate to rip them up.”

Cornyn argued that Democrats will eliminate the filibuster once they regain control of the Senate. “We can either unilaterally disarm, or we can stand and fight,” he wrote. “We can let the Democrats keep obstructing today and then smash the rules the first chance they get, or we can act now and use the mandate the American people gave this president and this Congress to secure our elections, protect our homeland and bring back common sense.”

“The answer is clear: We need to stand, fight and win,” he concluded. “Democrats started this fight. Now Republicans should finish it.”

Conservatives on and adjacent to Capitol Hill have begun pushing to make Democrats spend floor time defending their position through the talking filibuster, which proponents maintain is the filibuster, or at least was until the cloture rules were used to impose a supermajority requirement on legislation. Sen. Mike Lee (R-UT) has said any Republican who won’t take this approach should perhaps be replaced.

“Well, I prefer to have our fights with Democrats, and I’m always someone who believes that it’s far better for us to have a majority in the United States Senate,” Senate Majority Leader John Thune (R-SD) told reporters when asked about Lee’s comments.

But the dispute is ultimately about more than one primary, one Senate rule, or one piece of legislation. There is a broader debate among conservatives and Republicans about how to wield political power once it is granted to them by the voters. Trump has played a role in stoking grassroots resentment of the party’s governing class, but it long predates his two nonconsecutive terms as president or even his national political involvement.

This sentiment has certainly deepened during Trump’s second term because the Republican-controlled Congress has struggled to pass legislation, forcing the administration to rely on executive actions that are easily reversible by future Democratic administrations. Republicans have a tiny majority in the House, but a larger margin for error in the Senate, except for the filibuster.

“Conservative trifectas don’t come often,” Heritage Foundation president Kevin Roberts wrote on X, referring to Republicans holding both houses of Congress and the White House. “With a $38 trillion debt growing without restraint, Congress cannot squander this historic opportunity to pass a second reconciliation bill.”

The reconciliation process is not subject to filibusters in the Senate and therefore allows a limited amount of legislation to be passed along party lines with fewer than 60 votes.

“The American people handed Republicans a trifecta and a mandate,” posted the Republican Study Committee, a group of conservative lawmakers in the House. “We have a once-in-a-generation opportunity to deliver real affordability wins for hardworking families and undo the damage Democrats inflicted on this country over the past four years.”

Again, not a call to nuke the filibuster exactly, but a demand for legislative action.

For years, conservatives have believed they benefited from the filibuster. There was more they wanted to block than pass, and Democrats were the party of legislative wish lists and big government. Tax cuts could be passed through reconciliation without changing the filibuster rules. That’s also how Trump secured funding for immigration enforcement. 

“Throughout history, it has protected Republicans and conservative priorities and principles a lot more often than it has protected Democrats,” Thune said of the filibuster in mid-March. His predecessor as Senate Republican leader, longtime Sen. Mitch McConnell (R-KY), was also a staunch defender of the filibuster. During his first term, Trump was a rare Republican supporter of junking the rule.

“If Democrats in November win the White House and win the House and if they gain just one seat in the Senate, in January of next year they will have the votes to end the filibuster,” Sen. Ted Cruz (R-TX), Cornyn’s colleague since 2013, warned the Washington Examiner before the 2024 election. “They are one vote away from ending the filibuster. When they do that, they will be able to pass whatever legislation they want with 50 votes.”

Cruz cited amnesty for illegal immigrants, Puerto Rico and D.C. statehood, and Supreme Court-packing as the liberal initiatives a filibuster-less Democratic Senate might pass. Thune made similar comments this month.

When Democrats last controlled the Senate, they tried and failed to get rid of the legislative filibuster. They implied it was racist, pointing to segregationists (many of them Democrats) who used the procedural tool to delay or weaken civil rights legislation in the 1950s and ‘60s. Then-President Joe Biden, a 36-year Senate veteran who often billed himself as a McConnell-style institutionalist, was gradually won over to their position, at least favoring filibuster reforms or carve-outs that would allow Democrats to pass liberal bills on abortion and federalizing elections.

Democrats held the narrowest of majorities, with a 50-50 split where only Vice President Kamala Harris’s tiebreaking vote allowed them to organize the Senate, control the committees, and manage the floor. This marginally improved to a 51-seat majority in 2023, but that was of limited utility because Republicans won the House.

Two holdouts kept the filibuster intact despite a Democratic Senate: former Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Both are now gone from the Senate and consider themselves independents more than Democrats. Manchin was replaced by a Republican, but Sinema’s seat is held by a somewhat more progressive Democrat.

Now, the bases of both political parties are grappling with the fear that they will never be able to pass much of their agendas because they are unlikely to command a 60-vote majority in the Senate for the foreseeable future. Democrats briefly held one in 2009, but that required two consecutive blue-wave elections and a Republican switching parties. Democrats lost their filibuster-proof majority when Republican Scott Brown won the Massachusetts special election to fill the late Sen. Ted Kennedy’s seat. This, in turn, forced Democrats to alter their strategy for passing Obamacare and abandon certain progressive provisions that could not be enacted through reconciliation. 

The Senate map will likely get tougher for Democrats in future elections. But Republicans also fear they won’t win enough seats to have the votes to accomplish what they want to.

“If you’re willing to accept the ‘filibuster’ excuse for Republicans not passing the SAVE Act, or any other significant piece of actual conservative legislation, then what you’re saying is that you’re okay with Republicans in congress never passing any conservative legislation ever again,” wrote the conservative influencer Matt Walsh on X. “Republicans aren’t getting a filibuster proof majority.”

“So either we barrel through and advance our agenda by force, filibuster be damned, or it will never happen,” Walsh added. “Those are your choices.”

Progressives feel the same way, although Democratic enthusiasm for eliminating the filibuster has cooled since Republicans recaptured the majority. Democrats have twice used the filibuster to shut down the government, blocking funding bills that have majority support. 

Gov. Janet Mills (D-ME), who is running against a more progressive primary opponent for the right to challenge Sen. Susan Collins (R-ME), has cited abortion, one of the policy areas that made liberals want to get rid of the filibuster back when Democrats held a narrow majority, as a reason to keep it.

“The Governor believes the filibuster is the only thing standing between Republicans and a nationwide abortion ban,” a Mills spokesman told Slate. Some left-wing groups have backed off their insistence on filibuster elimination, at least for now.

“Interesting how rarely you hear Dems and progressives talking about filibuster reform these days, when it used to be a litmus issue,” Maine-based political journalist Alex Seitz-Wald quipped. “I wonder if something changed?”

Nevertheless, the Democrats’ past support for eliminating the filibuster for their favorite bills has persuaded some Republicans that they should strike first. This is the argument Cornyn has made.

“In 2024, Schumer confirmed to reporters that Democrats mean to finish the job and kill the filibuster’s 60-vote threshold the next time they take the majority,” Cornyn wrote. “For many years, I believed that if the US Senate scrapped the filibuster, Texas and our nation would stand to lose more than we would gain. But when the reality on the ground changes, leaders must take stock and adapt.”

Not everyone is happy with the change, including those who see it as more of an adaptation to partisanship and primary politics. This includes an erstwhile Democrat who spent considerable time and political capital on the issue.

“When Democrats wanted to eliminate the filibuster in 2022, I stood my ground because I understood the consequences of turning the Senate into a glorified House with simple majority rule,” Manchin responded on X. “Senator John Cornyn said of Democrats at the time: ‘They’ll soon find themselves rueing the day their party broke the Senate.’”

CONSERVATIVES COMPLAIN GOP CONGRESS ISN’T DOING ENOUGH AHEAD OF MIDTERM ELECTIONS

The West Virginian said it was “deeply disappointing to see that Senator Cornyn is now willing to scrap the very rule he once praised and personally thanked me for defending.”

In fact, Texas Republicans may make their Senate choice based on who will fight the filibuster harder — at least until the party is in the minority again.

W. James Antle III (@jimantle) is executive editor of the Washington Examiner magazine.