If they retain their majority next year, House Democrats would unquestionably pass all of these bills again. And the companion bill to each of these has widespread support in the Senate. For instance, all 47 senators who now caucus with the Democrats have endorsed a new voting-rights act sponsored by Leahy, the former Judiciary Committee chairman, as well as the Senate companion to H.R. 1.
In a world where Democrats achieve unified control, the filibuster will be the final obstacle for most, and perhaps all, of these proposals—not to mention sweeping immigration reform, gun control, workplace protections for the LGBTQ community, and other issues that the House would likely approve. And Democrats will know that control could be tough to maintain. The last four times a president—of either party—went into a midterm with unified control, voters have revoked it. (That list includes Trump in 2018, Barack Obama in 2010, George W. Bush in 2006, and Bill Clinton in 1994.) No party has controlled all the levers of government for more than four consecutive years since 1968. In all likelihood, Allison says, unified government would provide Democrats “a short window” of opportunity after 2020.
A Senate Democratic majority could vote to eliminate the filibuster immediately after it takes control, before any legislative action begins. But most political observers I’ve spoken to believe they may resist taking that step until they face a Republican filibuster blocking them on a specific bill they want passed—as Biden suggested in his comments earlier this month.
That means one of the most important choices facing Democrats may be picking the issue that forces the filibuster’s future to a head.
Merkley predicts that even if Democrats can’t agree to end the filibuster on all legislation, they might be willing to eliminate it for measures such as H.R. 1 and the new voting-rights act. “There’s such a sense that protecting and taking on the gerrymandering, voter suppression, and dark money is so important, it could well be a case … where every Democrat would come together to support a simple-majority” vote requirement, he told me.
That would be a momentous step. But it likely wouldn’t satisfy civil-rights activists, who are impatient for action on other issues with more immediate effects on day-to-day life than changes to the underlying electoral rules. Which is why some observers believe police reform is the issue most likely to crystallize the debate over the filibuster.
Such people think a Republican Senate minority, conscious of history, might look to cut a deal on police reform, because they wouldn’t want that to become the dispute that potentially ends the filibuster—and positions them as the modern heirs to southern segregationists such as Richard Russell and Strom Thurmond. Yet few signs suggest that many Republicans would accept the reform measures that the House has already passed and might build on next year. And that could make police reform the crucible that ultimately cracks the weapon of the filibuster, forged into its modern form through decades of “massive resistance” to civil rights.
“I do think it’s going to take a substantive issue to provide the motivation for senators to get rid of the filibuster,” Jentleson says. “In this environment, it is probably better to do it on an issue like police reform. There would be some serious historical continuity there that would add an extra layer of poetic justice to it.”