By Katelyn Burns
Rev. Raphael Warnock won the special election runoff Tuesday, successfully defending his position as Georgia Senator, giving Democrats control of the upper chamber with 51 seats. For LGBTQ+ people, his win means Senate Democrats inched ever so slightly closer to having enough votes to pass the Equality Act, which would add gender identity and sexual orientation to federal civil rights legislation. As TransLash Founder Imara Jones argues, the Equality Act is not only important substantively but also symbolically at a time of significant attacks against the LGBTQ+ community.
The legislation is currently blocked in the Senate because it doesn’t have enough Republican votes to overcome the 60-vote threshold and override a conservative filibuster. The bill continues to languish at the mercy of the filibuster even though another LGBTQ+ rights bill, the Respect for Marriage Act, which offers minimal federal protections for gay marriages, was recently passed in the Senate with a 61-37 decision.
The filibuster is a procedural rule requiring a 60-senator vote to end debate on a bill and proceed toward resolution. It’s somehow treated as an ancient tradition in the chamber even though it’s not mentioned anywhere in the constitution. It was first put to extensive use by segregationist senators in the 1960s and early 1970s who opposed civil rights legislation to block votes on bills.
Over the last two years, the filibuster has been the primary tool by which Republicans have blocked Joe Biden’s legislative agenda. A quick perusal of the president’s campaign promises shows a string of priorities, like codifying Roe v. Wade, passing comprehensive voting reforms, and passing the Equality Act, left for dead in the legislative graveyard of the Senate filibuster.
For the first time in several decades, Democrats made a serious effort early in Biden’s term to kill the filibuster and force through bigger pieces of legislation, however, Democrats didn’t have enough votes within their own caucus to do so.
Just two Democratic Senators stood in the way of overturning the filibuster, West Virginia’s Joe Manchin, and Arizona’s Kyrsten Sinema, though it’s possible that there are other senators who would vote against killing the filibuster if an actual vote were to be held on it.
With the midterms fully behind us, the push to end the filibuster faces critical crossroads. Democrats no longer have the ability to push through legislation, now that they’ve narrowly lost the majority in the House. And there would be little purpose in progressives killing the filibuster now, especially with a scary 2024 election ahead.
In two years, 21 Democratic Senators will be up for reelection, including a few from very conservative states, like the aforementioned Manchin, along with Sens. Sherrod Brown of Ohio, and Jon Tester from Montana. Sinema will also be up for reelection in Arizona, though she will likely face a primary challenge given the way she has thumbed her nose at Democrats over the last few years.
In turn, Republicans are only defending 11 Senate seats, and all of them are from deep red states in the nation’s heartland. Even during a presidential election year, there’s a scary enough chance of a conservative takeover of the Senate in two years.
Without the filibuster, the only way Democrats could hope to stop potentially horrific federal anti-LGBTQ+ bills like the ones we’re seeing in red state legislatures would be to hope the House stays blue. This is a risky bet when so many conservative states have successfully gerrymandered themselves into having more congressional seats than their vote share would indicate they deserve. The court system has been a willing accomplice in the GOP gerrymandering attack—allowing non-partisan voting maps to be scrapped by conservative legislators and stopping reform efforts that would undercut Republican seat counts.
The filibuster isn’t sexy, but it might just be necessary for queer people if a federal Republican-controlled legislature is on the horizon. There is a worrisome possibility that we missed our window for substantive filibuster reform in order to pass bills like the Equality Act.
Conservatives, of course, could just kill the filibuster themselves in order to pass their extensive anti-LGBTQ+ agenda the next time they get the federal trifecta of control of the House, Senate, and the White House.
For now, however, we have 51 senate seats ostensibly on our side, which means that we can at least continue the record-breaking pace of confirming federal judges that believe LGBTQ+ people are free and equal members of society, especially as several important trans rights cases work their way through the court system.
For LGBTQ+ people, and trans people, in particular, the filibuster is both a blessing and a curse. We just lived through a time when the filibuster held back progress on our rights, but we may just be entering a time when the filibuster would be our chief weapon to hold back the darkness.
Featured Image by Phil Mistry.
Katelyn Burns (she/her) is a freelance journalist and columnist for MSNBC. She was the first openly transgender Capitol Hill reporter in US history.