Bernie Sanders has a plan to blow up the filibuster.
The plan came a few days after Sanders gave an interview to HuffPost’s Amanda Terkel in which he dismissed calls to abolish the Senate filibuster. “Donald Trump supports the ending of the filibuster,” he said. “So you should be a little bit nervous if Donald Trump supports it.”
The issue, he continued, was that “whether you’re in the majority or the minority, I think you have to protect minority rights. I don’t think you can just simply shove everything through. There’s an argument for that, by the way, but that’s not where I am right now.”
Well, he got there pretty quick.
The problem for Sanders is the filibuster renders his agenda moot. The Medicare-for-all bill he introduced on Wednesday would be the single most ambitious, disruptive piece of social policy ever passed in America. It would abolish the private health insurance industry as we know it and rebuild Medicare from the ground up as a national health system. But that is the beginning of Sanders’s vision, not the end. He also wants to flesh out and pass a Green New Deal, break up the big banks, protect voting rights, and get big money out of American politics, to name just a few things.
Under current Senate rules, all of these bills would need 60 votes to pass. There is no plausible path by which Democrats will have 60 votes in the Senate. Even a simple majority will be hard. As such, Sanders had proposed an agenda whose passage was unthinkable under the current Senate rules.
“It makes zero sense for the Democrats to defend norms like the filibuster at a time when Republicans are shredding far more important norms,” says Ben Rhodes, who served as a top advisor to Obama. “You’re not going to pass your agenda.”
On Wednesday, Sanders squared the circle. He’s not going to change the rules so much as command his vice president, who will be the presiding officer of the Senate, to ignore them. In a statement, Sanders said:
I would remind everyone that the budget reconciliation process, with 51 votes, has been used time and time again to pass major pieces of legislation and that under our Constitution and the rules of the Senate, it is the vice president who determines what is and is not permissible under budget reconciliation. I can tell you that a vice president in a Bernie Sanders administration will determine that Medicare for All can pass through the Senate under reconciliation and is not in violation of the rules.
This is a quite radical maneuver — arguably more radical than simply abolishing the filibuster — and thus bears some explaining.
How the vice president can control budget reconciliation
The budget reconciliation process was created in 1974 to speed Congress’s efforts to match its budget goals with its actual spending. Importantly, part of that expedited process is protection from the filibuster. Soon enough, senators realized that budget reconciliation could potentially be used to protect anything from the filibuster, so the Senate passed a set of constraints, known as the Byrd Rule, to stop that from happening.
For Sanders’s purposes, the Byrd Rules sets two important limits on reconciliation, knocking out provisions that “don’t change the overall level of spending or revenue, or where such a change is merely ‘incidental,’” and that “increase deficits outside the 10-year budget window.”
In practice, one or both of these limits would rule out Medicare-for-all, which requires a vast architecture of regulatory changes that are incidental to spending or revenue and, depending on how Democrats write it, may increase deficits.
But here’s the thing: The way the budget reconciliation rules are enforced is that senators raise points of order against bills, the Senate parliamentarian makes a judgment on whether the point of order is correct, they give that judgment to the presiding officer of the Senate (in this case, the vice president), and the presiding officer makes the actual ruling.
By custom, the presiding officer follows the advice of the parliamentarian — but there’s nothing forcing him or her to do so.
What Sanders is saying is that he will command his vice president to ignore the parliamentarian’s advice and simply rule that anything he wants to do is permissible under reconciliation. This strategy has been floated before — Ted Cruz and Rand Paul proposed that Republicans use it during the debate over Obamacare repeal — but never actually used, because it is, if anything, more consequential than simply destroying the filibuster, as it could be applied to all sorts of other Senate procedures as well.
“It would mean that henceforth, all ‘rules’ in the Senate are subject to the blatantly partisan interpretation of the VP, who is following the dictates of the president,” says Gregory Koger, a political scientist at the University of Miami and the author of the book Filibustering.
Koger’s objection, which lots of Senate rules wonks share, is that at least when you change the rules, you change them for everyone. Simply commanding the vice president to stop enforcing them creates a Senate where anything goes. “This would represent a tremendous escalation of partisanship in the Senate, and of presidential control over the Senate,” Koger says.
“If you’re going to go nuclear,” asks Georgetown’s Josh Huder, “why not just go nuclear?”
My view of this strategy is it’s an unnecessarily complicated way of trying to get rid of the filibuster. It forces you to repeatedly overrule the parliamentarian. It replaces a principled argument for majority rule with a procedural maneuver that’s hard to explain and harder to defend. And it forces you to govern through the procedural quirks of reconciliation, rather than proposing, debating, and passing bills normally. Why not just make a case, on the merits, that 51 votes should be enough to pass a bill, change the rules openly, and then operate under the clear new rules thereafter?
But what makes this path different from simply abolishing the filibuster is much less consequential than what makes it the same as abolishing the filibuster. Ultimately, either strategy turns the Senate into an institution where any piece of legislation can pass with 51 votes. And either path requires 51 senators willing to vote for either the rules change or the product of the rules change.
Sanders’s rapid evolution speaks to the reality of the institution in modern time, a reality Democrats are increasingly coming to terms with. The filibuster has gone from being rarely used to constantly applied, from being a last-ditch tool minority blocs use to protect their interests to a standard feature of partisan obstruction.
And so, in a way that would’ve been unthinkable a few short years ago, it is becoming normal for Democrats to propose abolishing it: So far, in the presidential race, Sen. Elizabeth Warren, Gov. Jay Inslee, Mayor Pete Buttigieg, and Beto O’Rourke have all discussed eliminating the filibuster.
So long as a 60-vote supermajority is required to pass anything major in the Senate, there is no way for anyone to pass a transformative legislative agenda. As such, a threshold question for any candidate, of either party, running on an ambitious agenda is how they plan to get around the filibuster. Now we have Sanders’s answer.