With their voting rights legislation stalled and hanging in the balance, many Senate Democrats are poised to try to significantly scale back the power of the filibuster, if necessary, to enact new voting protections over near-blanket Republican opposition.
President Biden gave the uphill effort his most emphatic push yet on Tuesday in Georgia when he urged Senate Democrats to eliminate the filibuster against voting rights bills, an act that would represent a fundamental restructuring of the Senate when it comes to legislation.
As they prepared to try to bring the voting bills to the floor, leading Democrats said they were still weighing their approach. Multiple proposals are circulating, including restoring the “talking” filibuster by requiring lawmakers to take the floor, Mr. Smith-style; reducing the number of votes needed to break a filibuster; and limiting its use altogether in some circumstances. Only the latter option would guarantee that the voting bills would receive final consideration and potentially be enacted.
Democrats have proposed limiting the changes to voting rights measures, which they argue have a special status because they are vital to preserving democracy, but lawmakers in both parties recognize that any change would erode the filibuster for all bills.
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That would mark a fundamental change in the chamber’s procedures, but one that Democrats say is long overdue.
“The use of the filibuster is out of control,” Senator Richard J. Durbin of Illinois, the No. 2 Senate Democrat, said Monday.
Some of the moves, particularly the idea of barring the use of a filibuster to prevent a bill from being taken up, have bipartisan backing, as members of both parties believe current Senate rules deprive rank-and-file members of the chance to have their ideas heard on the floor.
But unless the changes can attract the 67 votes usually needed to change Senate rules — a highly unlikely scenario given strident Republican opposition — the only way to achieve that change is through what is known as the “nuclear option.” In that scenario, Democrats would stage a series of votes on the floor to overrule Senate precedents on a strictly partisan vote.
That is how Democrats eliminated the 60-vote threshold on most nominees in 2013, and how Republicans did the same on Supreme Court nominees in 2017.
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At least two Democratic senators, Kyrsten Sinema of Arizona and Joe Manchin III of West Virginia, have said they would not take part in such an effort, arguing that it would irreparably damage the Senate. Mr. Manchin opposed the previous changes and on Tuesday reiterated his reluctance despite his backing for the voting rights bills.
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“I mean, voting is very important. It is a bedrock of democracy,” Mr. Manchin told reporters. “But to break the opportunity for the minority to participate completely — that’s just not who we are.”
As part of the effort to win their backing, Democrats on Tuesday brought in two Harvard professors, Steven Levitsky and Daniel Ziblatt, the authors of “How Democracies Die,” for a luncheon presentation on their book exploring how political leaders can gradually subvert democracy to solidify their power.
Despite some claims to the contrary, the filibuster is not enshrined in the Constitution, nor was it prescribed by the nation’s founders, even though they did call for supermajorities on issues such as treaties. It has evolved through changes to Senate rules over the centuries, and is most associated in the 20th century with efforts by segregationist Southern states to block civil rights bills — an ugly past that Democrats claim is being replayed today.
The filibuster has been modified repeatedly — and upended altogether for nominations and some budget bills. In recent years, it has become an almost constant phenomenon in the Senate, as both parties have relied on it to thwart the opposition, often grinding the chamber to a halt and making legislating impossible except in crisis situations such as the pandemic and grave economic threats.
But the idea of changing the filibuster has drawn fierce pushback from Senate Republicans led by Senator Mitch McConnell of Kentucky, the minority leader, who is threatening retaliation if Democrats proceed.
Frustrated like many of his colleagues, Mr. Manchin has expressed support for requiring senators to engage in a talking filibuster and hold the floor while they are blocking legislation. Many Americans recognize this scenario from the movie “Mr. Smith Goes to Washington,” when the naïve but principled senator played by Jimmy Stewart took to the floor for a talkathon aimed at stopping a land grab.
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Such marathon speechifying was the norm until 1970, but under modern Senate practice, opponents of legislation need not talk at all. They simply must secure commitments from 41 senators to oppose a bill and it is considered filibustered and stalls.
Restoring the talking filibuster would force opponents to hold the floor or face the prospect of seeing the bill advance. It would still require 60 votes to end such a filibuster, and Mr. Manchin has not signaled he would change that standard.
Another plan would set the threshold for ending a filibuster at three-fifths of those present and voting, rather than three-fifths of the Senate — or 60 — potentially lowering the threshold and forcing opponents to show up and vote. That is unlikely to have much impact in cases such as the voting rights legislation, which Republicans are determined to stop and would marshal their forces to do so.
Another option would be to eliminate the 60-vote threshold on what is known as the motion to proceed, the initial move that brings a bill to the floor. Mr. McConnell pioneered this tactic in fighting bipartisan campaign finance laws two decades ago, and it has taken root in the Senate.
Eliminating it would still require proponents of a bill to muster 60 votes to force a final vote, but opponents could no longer use a filibuster to block debate altogether.
Democrats, speaking generally about their plans, say they would like to change the rules in a way that ensures that bills can be brought to the floor, debated and given a final vote, but only after opponents have had ample opportunity to change them through amendments, similar to the handling of filibuster-proof budget bills.
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President Biden gave the uphill effort his most emphatic push yet on Tuesday in Georgia when he urged Senate Democrats to eliminate the filibuster against voting rights bills, an act that would represent a fundamental restructuring of the Senate when it comes to legislation.
As they prepared to try to bring the voting bills to the floor, leading Democrats said they were still weighing their approach. Multiple proposals are circulating, including restoring the “talking” filibuster by requiring lawmakers to take the floor, Mr. Smith-style; reducing the number of votes needed to break a filibuster; and limiting its use altogether in some circumstances. Only the latter option would guarantee that the voting bills would receive final consideration and potentially be enacted.
Democrats have proposed limiting the changes to voting rights measures, which they argue have a special status because they are vital to preserving democracy, but lawmakers in both parties recognize that any change would erode the filibuster for all bills.
Advertisement
Continue reading the main story
That would mark a fundamental change in the chamber’s procedures, but one that Democrats say is long overdue.
“The use of the filibuster is out of control,” Senator Richard J. Durbin of Illinois, the No. 2 Senate Democrat, said Monday.
Some of the moves, particularly the idea of barring the use of a filibuster to prevent a bill from being taken up, have bipartisan backing, as members of both parties believe current Senate rules deprive rank-and-file members of the chance to have their ideas heard on the floor.
But unless the changes can attract the 67 votes usually needed to change Senate rules — a highly unlikely scenario given strident Republican opposition — the only way to achieve that change is through what is known as the “nuclear option.” In that scenario, Democrats would stage a series of votes on the floor to overrule Senate precedents on a strictly partisan vote.
That is how Democrats eliminated the 60-vote threshold on most nominees in 2013, and how Republicans did the same on Supreme Court nominees in 2017.
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At least two Democratic senators, Kyrsten Sinema of Arizona and Joe Manchin III of West Virginia, have said they would not take part in such an effort, arguing that it would irreparably damage the Senate. Mr. Manchin opposed the previous changes and on Tuesday reiterated his reluctance despite his backing for the voting rights bills.
Sign Up for On Politics A guide to the political news cycle, cutting through the spin and delivering clarity from the chaos. Get it sent to your inbox.
“I mean, voting is very important. It is a bedrock of democracy,” Mr. Manchin told reporters. “But to break the opportunity for the minority to participate completely — that’s just not who we are.”
As part of the effort to win their backing, Democrats on Tuesday brought in two Harvard professors, Steven Levitsky and Daniel Ziblatt, the authors of “How Democracies Die,” for a luncheon presentation on their book exploring how political leaders can gradually subvert democracy to solidify their power.
Despite some claims to the contrary, the filibuster is not enshrined in the Constitution, nor was it prescribed by the nation’s founders, even though they did call for supermajorities on issues such as treaties. It has evolved through changes to Senate rules over the centuries, and is most associated in the 20th century with efforts by segregationist Southern states to block civil rights bills — an ugly past that Democrats claim is being replayed today.
The filibuster has been modified repeatedly — and upended altogether for nominations and some budget bills. In recent years, it has become an almost constant phenomenon in the Senate, as both parties have relied on it to thwart the opposition, often grinding the chamber to a halt and making legislating impossible except in crisis situations such as the pandemic and grave economic threats.
But the idea of changing the filibuster has drawn fierce pushback from Senate Republicans led by Senator Mitch McConnell of Kentucky, the minority leader, who is threatening retaliation if Democrats proceed.
Frustrated like many of his colleagues, Mr. Manchin has expressed support for requiring senators to engage in a talking filibuster and hold the floor while they are blocking legislation. Many Americans recognize this scenario from the movie “Mr. Smith Goes to Washington,” when the naïve but principled senator played by Jimmy Stewart took to the floor for a talkathon aimed at stopping a land grab.
Advertisement
Continue reading the main story
Such marathon speechifying was the norm until 1970, but under modern Senate practice, opponents of legislation need not talk at all. They simply must secure commitments from 41 senators to oppose a bill and it is considered filibustered and stalls.
Restoring the talking filibuster would force opponents to hold the floor or face the prospect of seeing the bill advance. It would still require 60 votes to end such a filibuster, and Mr. Manchin has not signaled he would change that standard.
Another plan would set the threshold for ending a filibuster at three-fifths of those present and voting, rather than three-fifths of the Senate — or 60 — potentially lowering the threshold and forcing opponents to show up and vote. That is unlikely to have much impact in cases such as the voting rights legislation, which Republicans are determined to stop and would marshal their forces to do so.
Another option would be to eliminate the 60-vote threshold on what is known as the motion to proceed, the initial move that brings a bill to the floor. Mr. McConnell pioneered this tactic in fighting bipartisan campaign finance laws two decades ago, and it has taken root in the Senate.
Eliminating it would still require proponents of a bill to muster 60 votes to force a final vote, but opponents could no longer use a filibuster to block debate altogether.
Democrats, speaking generally about their plans, say they would like to change the rules in a way that ensures that bills can be brought to the floor, debated and given a final vote, but only after opponents have had ample opportunity to change them through amendments, similar to the handling of filibuster-proof budget bills.
Democrats are looking at multiple proposals to curb the filibuster.
With a floor fight looming, Democrats have yet to settle on exactly how they would change the rules to sidestep Republican opposition to voting rights bills.
