After the failure of last week’s Senate vote on creating an independent commission to review the events of January 6th, attention has increased on the need to do something to end or modify the filibuster. Sadly, Democratic Senator Joe Manchin of West Virginia, the Democrats’ crucial 50th vote in the Senate, still isn’t yet persuaded.
Manchin makes a valid point that ending the filibuster altogether has its own problems. Note, for example, that the filibuster was removed for the confirmation of Supreme Court justices, and look at how the GOP rammed through the last three nominees. Today, the filibuster, often rationalized as a way of protecting the minority against a predatory majority, has become a way for the minority to quash the majority and kill legislation that has the support of the American people.
As it is implemented today, the filibuster enables a single Senator to prevent a vote. It’s not part of the Constitution but was incorporated into Senate rules in 1806 by Aaron Burr (another reason to dislike him?). Cloture, the power to end the speechifying, required a two-thirds vote in 1917. In 1975, that threshold was lowered to three fifths or 60 votes, but made it a fixed threshold, not a share of those present and voting. Over the past century, it was most often used to pass Jim Crow-type laws or prevent civil rights reforms. Recently, it has been grossly abused, a tool for tyranny by the minority.
It would take “only” 51 votes to change Senate rules to make the filibuster to go away. It could be done if President Biden had the support of all Democrats, with Vice President Kamala Harris casting the deciding vote. But, as I’ve written, Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) oppose eliminating the filibuster, as probably does Jon Tester (D-MT). There are, however, some ways to modify the filibuster to meet their objections.
Norm Ornstein, writing in The Atlantic last fall, and in a series of recent articles coauthored with former Minnesota Senator Al Franken, suggests transferring the burden of overcoming the delay from the majority to the minority. Right now, 60 Senators must vote for cloture, that is, moving to vote on the actual bill in debate. What if, writes Ornstein, instead of needing 60 votes to end the debate, there had to be 40 votes to continue it. “If, at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a majority.” Those opposed would have to sleep on cots nearby the Senate floor lest a vote be called in the middle of the night. (Ornstein would also be open to requiring the minority to have 45 votes to continue the debate.)
Manchin himself has sometimes expressed some support for the Senate returning to the days of the “talking filibuster.” It would mean that the minority would have to have their members present, rather than just a single Senator blockading a bill.
Former Oklahoma Republican Congressman Mickey Edwards, now a Princeton professor, who has written extensively about reforming many aspects of the democratic process, also supports a return to the talking filibuster but would go even further than Ornstein. Edwards believes the Senate should require Senators to speak specifically about the issue at hand — no more reading of Grandma’s recipes and children’s books as a delaying tactic. If Senators changed the topic, the filibuster would automatically be suspended.
Edwards also urges a sliding scale: allow the Senators conducting a filibuster to make their case unimpeded with a two-thirds requirement for cloture for up to one week, including weekends. After one week, require 60 votes for cloture for an additional three days. By then, the case against the pending legislation would have been argued for ten days, and it would be time to move on by requiring only one vote more than half of the members present and voting to end the filibuster. The Senate gets to do its business, and the case against the proposal gets a full ten days to be heard and evaluated by other Senators and by the country at large. Edwards would also prohibit any Senator from participating in more than one filibuster in any Congress (i.e., two years).
These rules adjustments might reassure the minority that there had been adequate time to explore the ins and outs of a legislative proposal. In the end, such modification could make bipartisanship more of a possibility. Of course, if the craven and obdurate GOP minority doesn’t care about negotiating a substantive compromise, and only cares about stopping the majority party from accomplishing anything at all, at least we could end the pretense that the filibuster is a tool for democracy, to ensure the majority doesn’t trample on the rights of others.
If Manchin and Sinema would agree to the Rules change (effected by a simple majority), at a minimum the Senate could vote to return to the “talking filibuster” or, better still, put the burden on the opponents. This might reduce the number of times it is reflexively utilized and could even help Biden’s ambitious agenda move forward, in some compromised form, rather than dying a painful death. And that would be a significant step in the right direction.