During a Tuesday speech in Atlanta, President Biden called for the Senate to change filibuster rules in order to pass major voting rights legislation.
“The Vice President and I have supported voting rights bills since day one of this administration. But each and every time, Senate Republicans have blocked the way. Republicans oppose even debating the issue,” Biden stated, “But as an institutionalist, I believe that the threat to our democracy is so grave that we must find a way to pass these voting rights bills, debate them, vote.”
“Let the majority prevail,” Biden continued, “And if that bare minimum is blocked, we have no option but to change the Senate rules, including getting rid of the filibuster for this.”
As a self-described ‘institutionalist’, Biden has evolved on his filibuster stance. As a Senator, he threatened to filibuster two bills and described the filibuster as a senator’s “right” to block or prevent legislation from coming to pass. In the more recent years, President Biden’s stance on the filibuster has changed, first stating that he would be open to reverting to the “talking filibuster”. He now endorses changing filibuster rules entirely.
Biden is now endorsing this change to pass two pieces of legislation reforming voting and election laws. One will establish a federal mandate of voting rules, including allowing mail-in ballots and ending partisan gerrymandering; the other, named after the late Rep. John Lewis, would strengthen parts of the Voting Rights Act.
Meanwhile, Senate Majority Leader Chuck Schumer has scheduled a deadline on January 17th, Martin Luther King Jr. Day, to hold a vote on the filibuster.
However, two Democratic Senators, Joe Manchin and Kyrsten Sinema, may not be on board with a filibuster rule change, creating another potential roadblock for Senate Democrats.
What Is A Filibuster?
A filibuster is a way a member of the Senate can obstruct a piece of legislation from moving forward.
Often, it is a tool used by the minority party in the Senate — against the majority — to delay a vote on a bill, or to prevent it from occurring. Sometimes senators will prolong debate or make long, drawn-out speeches.
Contrary to popular belief, the filibuster was not part of the U.S. constitution. It only became possible due to a Senate rules change in 1806, and was not used until 1837. The filibuster was actually used for the first two centuries of Senate history until it skyrocketed in more recent years. Senators began to use the filibuster more regularly in the 20th century; successful filibusters were used in the past to prevent voting rights legislation or anti-lynching legislation, for example.
While a bill only needs a simple majority of 51 votes to pass, a supermajority, or 60 votes, is needed to start or end debate on legislation so it can proceed to the final vote.
This is where the filibuster comes in.
In a hyper-partisan Senate, where the majority party cannot get support from the minority party, the filibuster has been a roadblock to many pieces of legislation from passing.
In today’s Senate rules, 60 votes are needed to end a filibuster, an action known as a ‘cloture’. Cloture puts a time limit on a bill’s consideration, providing it with a path to move forward. With the Senate split 50/50, and Senate Democrats not having 10 Republican votes to invoke cloture and end a filibuster, it is extremely difficult to pass certain pieces of legislation where there is partisan divide.
Even if Democrats had 10 Republican votes, cloture is still an extremely time consuming process that can draw out and delay action on a bill for days or even weeks.
How the Filibuster Has Obstructed Progress
Rarely used for the majority of Senate history, the filibuster has exploded in more recent years. And in a more stubborn, partisan Congress, it has become an often-used tool.
In 1969 to 1970, there were six votes to overcome a filibuster. In 2019–2020, there were 298 votes.
Cloture was also rarely invoked fifty years ago. Before 1970, there were fewer than 10 cloture votes in any given year. Now, this current Congress has already held 155 cloture votes since January 2021.
Since filibuster threats are so common now, cloture is required for nearly everything the Senate does. Even if the majority has 60 required votes to invoke cloture, passing a bill can still take two weeks if the process is dragged out by the minority. This throws every other piece of agenda off on the calendar, obstructing progress on other potential pieces of legislation, taking up time and resources.
This has resulted in far fewer bills passing Congress. However, the bills that do pass are much bigger, being crammed with provisions and amendments that would never otherwise see an individual vote on the floor. Members of Congress now must weigh much bulkier bills, sometimes voting for a bill even if there are provisions they strongly disagree with, and vice versa.
In the past 12 years, only a handful of big legislative accomplishments were passed by finding loopholes around the filibuster. For example, in 2021, the $1.9 trillion COVID-19 relief bill was passed through a reconciliation process, which requires only a simple majority for certain budget bills. But this process is complex, subject to severe limitations, and cannot be used regularly.
Meanwhile, Congress has become much less productive. In the late 1940’s, President Harry Truman famously attacked the 80th Congress as the “Do Nothing Congress”, noting the lack of legislation they have passed. This 80th Congress, in 1947–1948, passed 906 pieces of legislation.
The 116th Congress, in 2019–2020, passed 283 pieces of legislation — less than a third passed by the “Do Nothing Congress”.
Previous Filibuster Rules Changes
Senators have previously carved out exceptions to the filibuster rule with an option known as “going nuclear”, which is to override an existing rule. This was used in 2013 and in 2017 to end a filibuster with a simple majority rather than a supermajority when it came to confirming nominees for the cabinet and Supreme Court.
In 2013, Senate Majority Leader Harry Reid changed the “nuclear option” to require a simple majority rather than a supermajority in order to confirm President Obama’s Cabinet nominees. This was used again in 2017 to confirm President Trump’s Supreme Court Nominees.
Budget reconciliation rules also allow a simple majority to pass, bypassing regular filibuster rules. And there have been many other instances of “carve-outs” to the filibuster, exceptions made for certain pieces of legislation, such as bills involving arms sales to foreign countries. However, may of these “carve-outs” were temporary and have lapsed.
Some Senate Democrats are now considering a “carve-out” option for the voting rights legislation, or to abolish the filibuster entirely.
The Senate Dems’ Plan
Senator Schumer has already set a deadline next Monday to hold a filibuster rule change vote. Changing the filibuster would allow the voting rights legislation to proceed with a simple majority rather than a supermajority.
Democrats would need 50 votes to change the Senate filibuster. However, the more conservative Democrats in Congress, Senator Joe Manchin and Senator Kyrsten Sinema, are not likely to join their party in changing this rule, having previously opposed ending the Senate’s current 60 vote threshold.
“We need some good rules changes to make the place work better. But getting rid of the filibuster doesn’t make it work better,” Manchin has stated on Tuesday.
However, on Wednesday, Senator Schumer put out a caucus memo detailing his plan to pass the voting rights legislation.
Schumer plans on using an existing congressional rule to bypass a potential GOP filibuster. When the House and Senate pass different versions of the same bill, that bill must go through reconciliation in order for both the House and Senate to approve the same version of the bill. Once a bill has been sent three times between chambers, the motion to proceed cannot be filibustered in the Senate. The House intends to add the voting rights legislation to a bill that has already passed both chambers three times and send it as a “message” to the Senate, bypassing a filibuster and allowing debate on the floor. It will then take a simple majority to pass the bill, but 60 votes to end the debate, unless Democrats change the filibuster rules.
“How can we in good conscience allow for a situation in which the Republican Party can debate and pass voter suppression laws at the state level with only a simple majority vote, but not allow the United States Senate to do the same?” Schumer wrote.
All 50 Democrats in the Senate must be on board to weaken the filibuster, which puts pressure on Manchin and Sinema from members of their party.
Meanwhile, different options are being debated by Senate Democrats, including reverting back the “talking filibuster” (which states that a member of the Senate must stand on the floor talking to keep the filibuster going), or by creating a “carve-out” for voting rights legislation to pass with a simple majority.
The Challenge Ahead
Even though Senate Democrats lack the Republican votes for the voting rights legislation, and lack Manchin and Sinema’s votes to change the filibuster rules, they believe the vote must be brought regardless to the floor.
“The Senate will then be able to debate voting rights legislation for the first time this Congress,” Schumer stated. He recognized the challenge ahead in passing voting rights legislation, and that this is unlikely to happen without a filibuster rules change.
If the GOP blocks the voting rights legislation, Schumer will hold a vote for a filibuster rule change, which cannot go through without Manchin and Sinema’s support.
Earlier this month, former Presidents Obama and Clinton have personally called Manchin, urging him to support filibuster reform. Many Democratic Senators are also urging Manchin and Sinema to come on board.
“Changes to the filibuster are not radical. They have happened 160 times,” Senator Klobuchar said Wednesday, “History is riddled with exceptions and changes that were made.”