The filibuster is a time-honored tradition in the Senate that allows any Senator to prolong debate and delay or prevent a vote on a bill. Currently, 60 votes are needed in the Senate to end debate and pass most pieces of legislation, a threshold that requires Democrats to have the support of at least 10 Republicans to advance bills through the 50-50 Senate. It has been difficult thus far for Senate Democrats to win over enough Republicans which is severely limiting what Democrats can accomplish legislatively. This begs the question: why don’t Democrats simply scrap the filibuster?
Changing the Rules
Rules are made to broken, right? Well, it’s not that simple.
There are 2 options to end the filibuster rule. One option is to move forward to change Senate Rule 22, the rule that requires 60 votes to end debate. BUT, Senate Democrats need a super-majority – 67 votes – to change the rule. The other option is to create a new precedent in the Senate. Changing the precedent, also known as the “nuclear option,” would require only a simple majority.
Not Enough Democratic Support
While Senate Democrats only need 50 votes to create a new precedent on the filibuster, the biggest hurdle is that not all 50 Senate Democrats are on board. The most vocal supporters of the filibuster are Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), who have repeatedly voiced their opposition to removing the filibuster since Democrats narrowly regained control of the Senate in January 2021.
Manchin most recently affirmed his filibuster support on June 6 when he wrote, “I will not vote to weaken or eliminate the filibuster” in an op-ed in the Charleston Gazette-Mail. In his op-ed, Manchin pointed out that Senate Democrats were quick to defend the filibuster when then-President Donald Trump called for the tactic to be thrown out in 2017 when the GOP controlled both chambers of Congress and the White House. Similarly, Sinema declared on June 2 that the filibuster “protects the democracy of our nation rather than allowing our country to ricochet wildly every two to four years.” More so, Sinema has expressed support for restoring the 60-vote threshold to advance nominations.
Other Senate Democrats have conveyed some hesitancy to remove the filibuster. When asked in January 2021 if he supported keeping the filibuster, Sen. Mark Kelly (D-AZ) declined to answer specifically and instead stated that he supports bipartisanship. Additionally, Sen. Mark Warner (D-VA) also said in January that “it would take an awful, awful lot for me to end the filibuster.”
What About Reforming the Filibuster?
Between keeping or throwing away the filibuster, reforming the filibuster as we know it could be a third option and a compromise for Manchin and Sinema to consider. On March 7, Manchin did state that he supports making the filibuster more “painful” if senators want to use it. The scenario Manchin referred to is the “talking filibuster,” whereby members of the minority party can filibuster only as long as they are on the floor. Once a senator relents, there would be a simple majority threshold. The talking filibuster used to be the norm in the Senate until it was scrapped in 1975 because senators thought it was too time-consuming.
There is more recent precedent for reforming the filibuster. In 2013, then-Majority Leader Harry Reid (D-NV) led the way to allow all nominees except for Supreme Court justices to advance in the Senate with a simple majority. It should be noted that Reid accomplished this following a strong 2012 midterm election that saw the number of Democratic Senators grow from 53 to 55, while then-President Barack Obama publicly admonished Senate Republicans for consistently blocking his agenda. In 2017, Republicans expanded on this when then-Majority Leader Mitch McConnell (R-KY) permitted Supreme Court nominees to also be approved with a simple majority. McConnell proceeded to strike the filibuster in this scenario after Senate Democrats blocked the confirmation of Supreme Court nominee Judge Neil Gorsuch.
However, it’s unclear to what extent Manchin and Sinema would be open to even reforming the filibuster. Manchin’s June 6 op-ed clearly states an opposition to “weakening” the filibuster, while Sinema’s comments on restoring the 60-vote requirement to advance all nominees suggests an unwillingness to change.
What Does Biden Say?
Over the course of his long career in Washington, President Joe Biden has evolved from being a staunch supporter of the filibuster to embracing calls for reform. In the wake of the Sandy Hook mass shooting, then-Vice President Biden referred to the filibuster as a “perverted” rule after the Senate failed to advance gun violence legislation in 2013. More recently, Biden expressed support for restoring the talking filibuster in an April 2021 interview.
On June 2, Biden took a rare move to say “two members of the Senate who voted more with my Republican friends” when asked why progress on a voting rights bill has stalled. Biden was of course referring to Manchin and Sinema, who still technically vote with Democrats more often than not. Biden’s move to publicly call out the two suggests a willingness to use the power of the bully pulpit to condemn Democrats opposed to changing the filibuster, especially if his agenda continues to face staunch GOP opposition.
What Happens Next?
So far, the filibuster hasn’t totally derailed the Biden Administration’s agenda. The Administration and congressional Democrats have already scored a policy victory by advancing the American Rescue Plan Act, and most of the Senate’s business has focused on nominations. However, if Senate Republicans continue to oppose key Democratic proposals on voting rights, infrastructure, and other issues, Biden and other top Democrats could turn up the pressure on Manchin, Sinema, and other Senate Democrats to support changes to the filibuster. Whether the President or Senate Majority Leader Chuck Schumer (D-NY) are willing to do that remains to be seen.