The new Senate minority sure seems a lot like the old Senate minority.

Photographer: Andrew Harrer/Bloomberg

Democrats Rediscover the Filibuster

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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The 60-vote Senate is alive and well in the new Republican Congress. Now it's the Democrats who are filibustering. 

Senate Republicans today tried to bring up the House-passed Homeland Security funding bill -- the one House Republicans used to add riders attacking Barack Obama’s recent actions on immigration -- but they failed to defeat a Democratic filibuster. 

A slim majority of the Senate voted to begin working on the bill, with Democrats and one Republican, Dean Heller of Nevada, opposing it (and Mitch McConnell switching to a “no” vote for procedural reasons). But as long as the minority party is willing to filibuster, it takes 60 votes to get anything done in the Senate, so Republicans can’t even call up the bill.

Democrats have the right under Senate rules to filibuster moving to the bill, but until fairly recently minority parties didn't always filibuster just because they could. The parties would have negotiated over the ground rules for debating the bill, with both sides allowed to offer amendments that needed only a simple majority to pass.

Eventually, Democrats might have filibustered against final passage; or, before 1993, they might have allowed a final vote and then waited for the president to veto it. Filibustering all major bills only began in the 1990s, and filibustering everything didn’t start until Barack Obama became president. 

We’ll see what comes next. During the debate over the Keystone XL bill, Democrats united to filibuster against a final vote for a while, but some of them then used that leverage to bargain for votes on more amendments.

The question for Democrats over the next two years is whether they want to use the filibuster to block all Republican legislation in the Senate – or, at least in some cases, allow it to pass and then be blocked by the president’s veto. That didn’t apply on Keystone XL because the Democrats weren't united. (Most Democrats filibustered, but some support the pipeline and supplied enough votes for it to defeat the filibuster -- though not enough to override an expected Obama veto.) So far, at least, it appears likely that Democrats are going to use the filibuster-everything plan Republicans used over the last six years. And when they are united, Republicans won't have the votes to act.

Financing for the Department of Homeland Security is a must-pass bill. So sooner or later (and probably before funding runs out at the end of this month), the parties are going to have to figure something out, whether that means one side folds or a compromise is reached (Dara Lind at Vox goes over some options). It’s worth paying attention: The way this is resolved is going to set a pattern for how other must-pass bills are handled for the rest of the Obama administration.

  1. Definition of a must-pass bill: Everyone involved agrees that it's a must-pass bill because of the consequences if it doesn't pass.

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To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net