The Filibuster and the Future

By Michael A. Fragoso

Saturday, November 08, 2025

 

The vice president recently argued that Senate Republicans should abolish the filibuster because Democrats will do it when they can. He attributes Senate Republicans’ hesitancy to a delusion that Democrats lack the will to do so. With respect to the President of the Senate, this fundamentally misapprehends the thinking of the filibuster die-hards. They have no illusions about Democrats but are intent on taking a principled stand that best reflects conservative legislative interests.

 

The vice president stated, “Many of my friends (and former colleagues) in the Senate are against eliminating the filibuster because they don’t think the Democrats will do it.” That’s just not right. The Senate’s filibuster ultras know perfectly well what Democrats intend to do because they were around last time Democrats tried to do it. Not only were they around, but senators like Mitch McConnell, John Thune, Thom Tillis, Shelly Moore Capito, and even the vice president’s predecessor, Rob Portman, were instrumental in assisting Kyrsten Sinema’s efforts to preserve it — and with her efforts, Joe Manchin’s continued support. It was a near-run thing, and they were in command.

 

Saying McConnell or Thune doesn’t understand Democratic intentions on the filibuster is like saying Wellington underestimates Napoleon. They know perfectly well what Democrats will try to do.

 

The issue isn’t that they think Democrats won’t do it; it’s that Democrats doing so is a remote, contingent hypothetical. Republican senators are responsible for their actions, not those of future Democrats.

 

To understand it, you have to go back to the Scalia vacancy. It was then that Republicans blocked Scalia’s putative replacement, Merrick Garland. While part of what held the conference together on the issue was the fact that Joe Biden had proposed the same course of action in the George H. W. Bush administration (“the Biden Rule”), the fact is that the game-theory justification only came after McConnell had announced the policy of blockade. McConnell simply concluded that he had the power to stop Obama from filling the seat and that he should exercise that power for the good of the country.

 

Of course, this happened in February 2016, before the Republicans had a presidential nominee. Eventually, that nominee would be Donald Trump, to the great consternation of the Republican establishment. At the time, it was, at best, unclear that Trump would in fact narrowly defeat Hillary Clinton.

 

Ten years ago, many Republicans in the Senate were despondent that Hillary would definitely win. These Republicans then turned to “what will they do” game theory about the Scalia seat. My boss at the time, Jeff Flake, was convinced that a President Clinton would win and nominate someone far worse than Garland for the Scalia seat, and that Garland, all told, at least wasn’t a radical. Accordingly, he started saying publicly that we should just confirm Garland because it’s better to lose small today than lose big tomorrow. Indeed, he did more than just talk about it.

 

Flake’s view on Garland was the predecessor to the vice president’s view on the filibuster: We know what Democrats will do and should base our strategic thinking on how best to react to it.

 

McConnell and his allies had a fundamentally different view. McConnell had no control over what the American people would do in November nor over what President Clinton might do in January. All he could actually control was whether Garland got a vote and that needed to be evaluated based on whether Justice Garland would be good or bad for America.

 

A natural Stoic, McConnell was perhaps channeling Marcus Aurelius — “The things which are external to my mind have no relation at all to my mind.” Potential presidential election results were external to his mind, just like potential Democratic actions in a hypothetical Democratic trifecta are.

 

What does this mean for the filibuster die-hards? As long as they think that the filibuster benefits the institution of the Senate and conservative legislative interests, they will restrict themselves to the question in front of them: Is getting rid of the filibuster good for the Senate and Republican priorities? They control their votes and base their vote on that analysis. They don’t base it on what future senators may do in a theoretical context any more than Senate leadership during Garland based their actions on what President Clinton may have done.

 

That Democrats today and the vice president seem to agree about the wisdom of Republicans abolishing the filibuster only supports the conclusion that doing so is not actually in the interests of Senate Republicans.

 

The White House nevertheless seems hellbent on abolishing the filibuster. To do so it needs the support of Senate Republicans. It won’t get that support, however, by warning them about future hypotheticals. It will need to convince them that this is a good idea in and of itself.