Is The Filibuster Safe With The New Democratic Majority?

With incumbent Senator Raphael Warnock's victory in Georgia Tuesday night, Democrats now have a solid 51-seat majority in the United States Senate—giving them more power than they've had in nearly a decade.

They now have the ability to more easily confirm Biden's judicial nominees and have more influence to seat committee members. They also have bigger staff, bigger budgets, and stronger power to issue subpoenas. Moreover, Democrats are now able to dilute the power of centrist members of their party like Senators Joe Manchin and Kyrsten Sinema, potentially opening the door for initiatives once seen as impossible among members of their conference.

One of the biggest objectives for Democrats for the last several years of their legislative trifecta has been abolishing the filibuster—a tactic employed by lawmakers in the minority of stalling discussions on legislation unless a 60-member majority decides to vote.

For years, Democrats have derided the strategy as Republicans essentially governing by minority rule, allowing those representing less-populous states to override the will of the densely-packed majorities in Democratic-leaning districts on the coast and in the country's major population centers.

Conversations to abolish the filibuster reached a fever pitch in the throes of debate over House Democrats' "For The People Act," a sweeping electoral reform bill Republicans sought to kill via the filibuster in Democrats' slim, 50-50 minority, as well as on legislation to codify the outcome of the landmark Roe v. Wade abortion case into law.

Though Democrats supported eliminating the filibuster in both instances, Manchin and Sinema voted to reject it, essentially killing legislation that their party—and their colleagues in the House—supported.

It's a far cry from how it used to be. While speaking filibusters were customary in the decades since the current filibuster rules were enacted in 1975, it was regularly assumed legislation could pass with a simple majority of the membership. Not so much anymore: the default for any controversial bill, be it codifying the legality of same-sex marriage, voting rights, etc., now requires a two-thirds majority.

"It is noteworthy that nobody refers to legislation passing the Senate with 51 votes any more," Catherine Fisk, a professor of law at the University of California-Berkeley told Newsweek in an email. "Everyone assumes it now requires 60 votes."

But now that both of the party's centrist members have less power, is there any possibility the filibuster's days are numbered? Experts tell Newsweek the prospect is unlikely.

While Democrats have a more secure majority than they once did, they still likely lack the one vote they'd need to get filibuster reform over the top assuming both Manchin and Sinema continue to defect. And even then, it's unlikely a Democratic Senate will be given anything particularly controversial to work on, especially given the incoming Republican majority in the House of Representatives.

"I think filibuster reform is sort of inevitable at this point in time, and for good reason," Joshua Huder, a senior fellow at Georgetown University's Government Affairs Institute told Newsweek. "But the conditions next year are not the kind of conditions that you would want to nuke the filibuster for."

"It's highly unlikely, in my opinion that you would find a legislative deal the House could pass that a majority of Democrats in the Senate would also want to filibuster for," he added. "That seems extremely difficult to overcome. I think when the filibuster finally goes, it'll be under conditions of unified governance."

Ideally, Huder said, filibuster reform will come under three conditions: A single party with clear control of the White House, a strong majority in the House of Representatives, and at least a 54-vote majority in the Senate. Otherwise, there is likely little motivation for either party to pursue it.