Liberal Democrats are sensing new momentum behind their years-long drive to overhaul the Senate’s hallowed filibuster – but they still face a thorny path to weaken the powerful tactic long used to derail bills that lack support from the minority party.
To change the filibuster rules, Democrats will need total unity among their 50 members behind a single plan, but there are still ample disagreements over some major issues: Namely whether to keep the 60-vote requirement needed to break a filibuster.
Sen. Joe Manchin, the West Virginia Democrat who for the first time on Sunday opened the door to weakening the filibuster, still favors keeping the 60-vote requirement, people familiar with his thinking told CNN, even as a growing number of his colleagues are calling to change the rules so that a simple majority of 51 senators can vote to advance legislation.
The debate has profound implications not just for the traditions of the body but for the direction of President Joe Biden’s agenda and for Presidents to come given that the Senate – unlike the House – has long been where the minority can thwart the will of the majority.
But critics say that the filibuster has been increasingly abused by the minority over the last generation and is in dire need of reform. Manchin, who has long vowed to protect the filibuster, sounded open to one significant shift in the rules: Forcing members to go to the floor and argue if they want to attempt to talk a bill to death, much akin to the popular scenes from the classic film “Mr. Smith Goes to Washington.”
Manchin’s comments have now prompted renewed talk among Senate Democrats to at least change the rules to force senators to go to the floor and mount a “talking filibuster,” a move they hope would at least discourage the tactic since now a simple threat of a filibuster is enough to force a time-consuming set of procedural steps before being forced to clear a 60-vote threshold.
“I think a common refrain that you’ve heard from so many members is: ‘If there’s going to be a filibuster it needs to actually be a filibuster that those who want to obstruct actually should make their case before the American people,’” Sen. Jeff Merkley, an Oregon Democrat and leading advocate to gut the filibuster, said in an interview on Monday. “They should have to spend the time and energy to show up and hold the floor.”
Merkley, who wants to gut the filibuster altogether so that a simple majority of 51 senators is enough to advance legislation, has spent years lobbying his colleagues to adopt changes to the tactic. Now, he says, there’s been an “enormous change” within his caucus in favor of rewriting the filibuster rules.
Under one of Merkley’s proposals, if at least 41 senators vote to block ending debate on a bill or nominee, they would enter a period of extended debate where one or more senators could prevent a final vote for as long as they could physically keep debating the issue on the floor.
But as soon as they didn’t have someone on the floor, the presiding officer would declare the extended debate time to be over and the majority leader could move to a final vote where a simple majority vote would be needed for passage of either a nominee or a bill. Yet changing the rules to 51 votes envisioned under the proposal is something that Manchin is highly unlikely to support.
Discussions within the Senate Democratic Caucus are expected to pick up steam in the coming days to see if they can unify behind a single plan, senators and aides said Monday. In order to change the rules, Democrats need to employ a rarely use tactic called “the nuclear option” – a process where a majority party can change the rules without the consent of the minority.
In 2013, with Barack Obama as President, then-Senate Majority Leader Harry Reid infuriated Republicans when he invoked the so-called nuclear option to allow presidential nominees, other than Supreme Court picks, to be advanced by a simple majority of 51 senators. Later in 2017, then-Senate Majority Leader Mitch McConnell invoked the nuclear option to allow Supreme Court nominees to be advanced by a simple majority, a move that led to the eventual confirmation of then-President Donald Trump’s picks of Neil Gorsuch and Brett Kavanaugh on the high court.
And now, with Democrats seeking to push forward an ambitious agenda that has scant GOP backing, calls are growing from the left about taking that route again to gut the filibuster in order to allow legislation to deal with gun control, immigration, climate change as well as voting and LGBTQ rights.
“If we continue to see obstruction from our Republican colleagues as we saw through this Covid relief package, I think the patience is going to wear thin, even on moderate Democrats,” said California Sen. Alex Padilla, a freshman appointed to fill the seat vacated by Vice President Kamala Harris.
Democrats were only able to advance Biden’s $1.9 trillion relief package since they employed a budget process known as “reconciliation” that cannot be filibustered in the Senate, meaning a simple majority is all that’s needed to pass the bill under that particular procedure. It passed on Saturday by a 50-49 vote.
But they won’t be able to use the reconciliation process on other policy measures that fall outside of the parameters of the budget rules in the Senate, including the $15-an-hour federal minimum wage that was ruled as outside the bounds of the procedure.
Biden skeptical of filibuster changes
Biden, whose legislative agenda has so far garnered no support from Republican lawmakers, continues to resist changes to Senate rules that would diminish the power of the filibuster and its 60-vote requirement.
It’s a stance borne from his 36 years in the Senate, a staunch respect of its traditions and practices and an awareness that Democrats won’t always be in the majority, people close to Biden say. And while it’s not an unmovable view — the White House said Monday it was simply his “preference” to not change the rules — it’s one that puts him at odds with members of his own party.
At immediate issue is a voting rights bill Senate Republicans largely oppose. HR 1, which passed the Democrat-led House last week, would expand voting access and improve accountability and transparency in Washington, its sponsors say. The bill lacks 60 votes in the Senate.
“Voting to me ought to be filibuster-free just like we arranged for the budget to go forward under reconciliation, civil rights laws, and voting rights laws ought to be subject to reconciliation efforts as well,” Rep. Jim Clyburn, a Democrat from South Carolina who is close to Biden, said on CNN on Sunday.
Yet pressed on whether Biden could support that kind of exemption to the filibuster rules, the White House would not budge.
“That’s not his preference,” White House press secretary Jen Psaki said. “He believes with an issue as important as voting rights, there should be a path forward to work with Democrats and Republicans to get it done, so nothing’s changed on his policy on the filibuster.”
Democrats say there is still an opportunity to change the views of Biden and other skeptics in their party.
“I feel like things change on a dime here,” Rep. Pramila Jayapal, a Democrat from Washington who co-chairs the Congressional Progressive Caucus, told CNN on Monday. “And when we have several defeats of things that President Biden has promised, and that we must deliver like HR 1 voting rights, I think that that will move him. And we’re keeping up the pressure.”
Yet advocates for changing the filibuster still have a Manchin-sized roadblock ahead of them. And they’ll have to convince others who have been skeptical of changes – including Sens. Angus King of Maine and Kyrsten Sinema of Arizona – to go along as well.
Democrats pushing the rules changes say they’re party shouldn’t be worried about the long-term ramifications.
Merkley said Monday “I do not worry” that a rules change could backfire if Democrats find themselves back in the minority in the next two or four years.
“Democrats in minority would have the same ability to delay things if we’re willing to take to the floor and make our case before the public that the Republicans would have under the talking filibuster,” Merkley said. “If your position is right, if your cause is just, well then you’re going to do fine in the following election at having taken your stand.”
CNN’s Olanma Mang contributed to this report.