Contributed by Deb Kline.
There’s a noticeable increase in the volume of calls to end or reform the filibuster, even in light of President Biden’s stated preference to leave it as is. While Biden’s position is a bit of a head scratcher, other Democratic senators resisting elimination range from Bernie Sanders to Joe Manchin and Kyrsten Sinema. Their reasons mostly center on the ability for Democrats to use the tool when they are in the minority. But now, we have two years to get work done, and the opposition from across the aisle is strong and ruthless.
We already know very few Congressional Republicans will agree to any legislation that could bring big benefits to the people and which would be credited to the Biden administration. Laughably, they decry a lack of bipartisanship while they throw up ridiculous roadblocks to slow legislation that they know they’ll vote against anyway. The filibuster as it is now is one more tool in their kit to hold onto political power over much needed progressive reforms.
Replay: A filibuster permits a senator to stop popular legislation. Initially, it required a senator to hold the floor by refusing to stop talking, which took many, many hours and was exhausting, so it was a last resort to stop something that otherwise would pass (and was almost always used to stop civil rights legislation). To stop a filibuster, the majority needs 60 votes – something that could be hard to come by in a 50-50 split in the Senate.
Currently, a Senator only needs to threaten a filibuster to create the roadblock that stops legislation. That means they don’t actually have to do the work of the filibuster – unlike we saw when Mr. Smith went to Washington, but simply to refuse to entertain action.
Therein lies one option for keeping the filibuster but modifying requirements: Return it to its original form. Those opposed to a popular measure would not be able to simply register their disapproval in order to take it off the calendar, but actually to hold the floor to talk a measure to death. Senator Joe Manchin (D-WV) agrees that, “The filibuster should be painful, it really should be painful.” Once the filibusterer gives up, the measure can pass by a simple majority vote.
Would endless hours of droning on really discourage truculent Senators from engaging the tactic? Maybe. We saw that even after calling for a full reading of the 600-page American Rescue Plan, few if any showed up to listen. Absent full elimination or returning to the original format, there are other possibilities for filibuster reform:
- Flip the way the Senate does business: Instead of requiring 60 votes to proceed on a bill, require 41 (or more) votes to block it. A bill could advance with a simple majority unless 41 senators were at hand to vote “no.” This would require 41 opponents to stay close to the Senate floor lest the bill slip through when their numbers are below the blocking threshold.
Add exceptions to the filibuster rule There are currently exceptions to the 60-vote requirement for budget reconciliation and, as of recently, presidential nominations. More exceptions could be added. Exceptions that have been suggested include votes to raise the debt limit, expand voting rights (HR1, for example) or fund the federal government. Ad-hoc exceptions are an inelegant approach, but might be necessary.
Lower the filibuster threshold – The number of votes needed to break a filibuster was previously reduced from 66 votes to 60. It could be further reduced. If one thinks that there are Republican senators who might break from their party to support some Democratic priorities, reducing the threshold to 52 or 53 votes would address the concern of passing legislation with no Republican support, while not requiring more than the couple of centrist Republicans to join.
There are also other opponents who aren’t necessarily centrist but are still skeptical of getting rid of the filibuster. Some senators, steeped in Senate tradition, believe a process slowed by the filibuster is the best path to good lawmaking. They might be assuaged by the “ratchet” plan, proposed by former Sen. Harkin, which allows a simple majority to pass legislation with a longer process to get there.
Others, such as Sen. Bernie Sanders, have expressed concern that when the Republicans have control, they, too. would find their agenda easier to pass if the filibuster were eliminated. The counterargument is that Democrats should have confidence that if both parties could pass their agendas, revealing their impact on the public, that Democrats would win more elections. Still, there is an answer to such a concern: allowing the filibuster only by senators who represent a majority of the population.
There are a number of reasons Democratic centrists might be willing to support one of these compromises. The more modest measures would be a useful shot across the bow of Republicans to pressure them to engage in the bipartisan compromises the centrists so desire: There is an implicit threat to the Republicans that, if they don’t play, the centrists will further weaken, or eliminate, the filibuster.
Reluctant Democratic senators might also start to feel pressure as the calls to eliminate the filibuster gain volume. Although they are from moderate states, they count on progressive votes to win elections, and resisting any changes in the filibuster might prove politically untenable.
The bottom line is that we need to have a Senate that can pass a full range of important legislation. None of the options described here would eliminate the filibuster, but they would all make it easier to pass legislation favored by the party that won the presidency, won the House and whose senators represent states with many more people than their Republican counterparts — which is what we need for the country to truly move forward.
- Michael Ettlinger is the founding director of the Carsey School of Public Policy at the University of New Hampshire.