Democrats have thrown a spotlight this week on a centuries-old tool to give senators in the minority party the power to block bills — and many are pushing to change or end the practice as they prepare to shepherd a liberal agenda through a sharply divided Senate.
The filibuster, which creates a 60-vote hurdle that many measures must clear in order to pass the upper chamber, could paralyze the Biden administration’s agenda by requiring Democrats to persuade at least eight Republicans to support virtually every bill of significance. With a major piece of voting reform legislation on its way to the Senate after passing the House earlier this month, Democrats have assigned fresh urgency to a perennial discussion over discarding, or at least loosening, the rule.
From a Dutch word meaning “pirate,” the filibuster has always been a way for even just a handful of lawmakers to stop legislation by commandeering the floor — even though the modern filibuster rarely entails the dayslong monologues so closely associated with the term.
The current fight over the filibuster’s fate ranges from those who want to strip out the rule entirely to others who want to preserve the tool for the future — and supporters of several changes in between. Here is what’s on the table.
THE ‘TALKING’ FILIBUSTER
President Biden supercharged the debate on Tuesday evening when he told ABC News he backs reforming the modern practice of the filibuster. Currently, senators are essentially allowed to head off a lengthy debate with just a procedural vote, known as invoking cloture. If a piece of legislation lacks the 60 votes for cloture, debate continues. But Biden suggested restoring the requirement that a lawmaker hold the Senate floor continuously if he or she wishes to stall a bill.
“I don’t think you have to eliminate the filibuster. You have to do it what it used to be when I first got to the Senate back in the old days when you used to be around there,” Biden said on Tuesday. “And that is that a filibuster — you had to stand up and command the floor. And you had to keep talking along.”
‘LAND MINES’ IN DEMOCRATS’ HR-1 COULD STYMIE ITS PROGRESS IN SENATE
The talking filibuster Biden floated was historically used in cases in which fewer than 40 senators opposed a bill, meaning the legislation had enough support to pass when the talking was done. It would be far less effective, and less disruptive to Senate business, if Republicans were forced to speak endlessly against a bill that did not have the votes to advance regardless.
Biden stopped short of calling for the elimination of the filibuster, but his proposal could dramatically affect the way senators put the tool into practice. Even so, Republicans could still use it if they were determined to block bills like the controversial H.R. 1, the voting reform measure animating much of the present debate.
His comments could also galvanize the cohort of Senate Democrats — such as Sens. Jon Tester of Montana, Tim Kaine of Virginia, and Catherine Cortez Masto of Nevada — who have expressed reluctance to the idea of scrapping the 60-vote threshold altogether but who have suggested the talking filibuster could serve as a middle ground. The White House has since left the door open to more aggressive reforms. White House communications director Kate Bedingfield said Thursday that the Biden administration was “open to discussion” on rule changes.
THE MERKLEY PROPOSAL
A somewhat more aggressive version of the talking filibuster, championed by Sen. Jeff Merkley, a Democrat from Oregon, who has spent years calling for filibuster reform, has also become part of the conversation.
Merkley’s proposal would place an even greater burden on the minority wishing to obstruct a bill, requiring the party to keep at least 41 of its members on the Senate floor for the duration of the filibuster. Rather than allowing lawmakers to take individual turns at the microphone, something that dozens of committed Republicans could accomplish with relative ease if they worked in shifts, the Merkley proposal would force dozens of Republicans to remain physically in the chamber for as long as the filibuster continued.
Wrangling so many people into one room for an indefinite period of time could prove an insurmountable logistical challenge for even the most committed of legislative opponents.
THE END OF THE FILIBUSTER?
Some Senate Democrats and liberals outside the upper chamber are calling for the filibuster to be removed altogether, lamenting the possibility of spending two or more years locked in a stalemate with Republicans.
Sen. Chris Van Hollen, a Maryland Democrat, for example, has described the rule as “anti-democratic.”
But a change so significant would face a difficult path forward in the Senate, where Democrats would need their whole caucus to support an end to the filibuster. Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have announced hard opposition to such a move, denying Democrats the 50 votes they would need even with Vice President Kamala Harris as a tiebreaker. And Republicans are united against gutting the only weapon they have to fight the Biden agenda in the years ahead.
Beyond Manchin and Sinema, however, a number of other Senate Democrats, such as Sen. Dianne Feinstein, a California Democrat, have hinted at opposition to blowing up the filibuster entirely — even if their stances have been less firm. Left without the numbers necessary to kill the rule, Senate Majority Leader Chuck Schumer has not outlined a position on nixing it, although he has said, “Failure is not an option” when it comes to passing H.R. 1 and has insisted the filibuster’s demise remains on the table.
A SPECIAL EXCEPTION?
Yet another camp of Democrats in and out of the Senate has floated carving out a special exemption for voting reform legislation to pass without requiring 60 votes, and the ambiguity of other Democrats’ statements on the debate has left room for supporting such a narrow move as well.
Democratic Sen. Raphael Warnock of Georgia spoke Wednesday on the Senate floor about the incoming bill, and although he specified that he did not intend to weigh in on the general merits of the filibuster, he argued H.R. 1 should be significant enough to transcend the debate.
“I’m here to say that this issue is bigger than the filibuster,” Warnock said. “It is too important to be held hostage to a Senate rule.”
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Manchin, however, has already thrown cold water on the idea of skirting the Senate rules just for one piece of legislation.
He told reporters on Capitol Hill: “That’s like being a little bit pregnant.”
