The US Senate is rapidly hurtling towards a high stakes showdown over the filibuster, a once arcane procedural maneuver that stands in the way of Democratic efforts to pass sweeping voting rights legislation, among other measures.
A fight over the filibuster, which sets a 60-vote threshold to move legislation forward, seemed inevitable after Democrats narrowly took control of the senate in January. But urgency has escalated in recent weeks as Republicans in state legislatures across the country aggressively push new voting restrictions.
The Senate last week introduced S1, a vast voting rights bill that already passed the US House. With the filibuster fully in place, it doesn’t stand a chance of passing.
And the problem for Democrats is that there is no consensus in the Senate caucus about what, exactly, they should do about the filibuster. Some Senate Democrats, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona the most prominent among them, are staunchly opposed to getting rid of the procedure entirely, saying it guarantees the minority has input into lawmaking. That means Senate Democrats will probably have to find some way of moderating the rule to allow them to pass legislation.
“The filibuster as is, the status quo, is not sustainable and it will not be like this in 12 months,” said Rahm Emanuel, the former Chicago mayor who served as Barack Obama’s chief of staff. “The thing we don’t know is what changes are palpable to the senators.”
There are a range of ideas floating around. One that seems to be gathering support is the so-called talking filibuster. It would require senators who want to filibuster a bill to actually speak on the floor for the entire time they want to hold up the legislation. Other ideas include exempting voting rights legislation from the filibuster or lowering t60-vote threshold to move forward.
“Everything is on the table,” Chuck Schumer, the Senate majority leader, said on Wednesday.
Joe Biden has long opposed getting rid of the filibuster. But this week he energized advocates by endorsing the talking filibuster.
“It’s getting to the point where, you know, democracy is having a hard time functioning,” he told ABC’s George Stephanopoulos.
Manchin said on Thursday that he welcomed Biden’s stance on the issue.
“I think it’s encouraging that President Biden understands this process and wants it to work so at least he’s taking a stance. We’ll see what comes out,” he said. “It’s important to have the minority participation in the Senate because without it you’ve got nothing.”
Privately, Schumer reiterated what he has said publicly to advocates this week, saying the caucus was united and the bill would be brought to the Senate floor, according to a person familiar with the meeting. He did not say what the Democratic strategy on the filibuster would be.
Senator Chris Coons, a Democrat and another strong defender of the maneuver, said the talking filibuster was “worth exploring but there are a lot of consequences”.
Democrats are raising the temperature on the need for reform. Last summer, Barack Obama called for getting rid of the filibuster, describing it as a “Jim Crow relic”. Elizabeth Warren this week said the filibuster “has deep roots in racism”. Senator Raphael Warnock, who became Georgia’s first Black senator in January, gave a stirring speech on the Senate floor this week on the need to protect voting rights.
“This issue is bigger than the filibuster,” he said. “It is a contradiction to say we must protect minority rights in the Senate while refusing to protect minority rights in the society.”
Asked whether he could persuade some of his colleagues to come around on changing the filibuster, Senator Jeff Merkley, an Oregon Democrat, said he was optimistic.
“The most fundamental aspect of the Republic is access to the ballot box. We have a responsibility to defend it. If we don’t do that we’re not honoring our oath – so let’s figure out how to do it. We’ll figure out that specific path through our conversation,” he said.
But Republicans are digging in their heels, too. Lindsey Graham, the Republican senator from South Carolina, said this week he would use the filibuster to block voting rights and LGBTQ+ legislation, vowing he would “talk until I fell over” if needed.
And Mitch McConnell, the Republican leader, warned earlier this week of a “scorched earth” senate if Democrats got rid of the filibuster. He vowed he would use every procedural maneuver available to block the senate from moving forward.
“Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like,” McConnell said. “Even the most basic aspects of our colleagues’ agenda, the most mundane tasks of the Biden presidency, would be harder, not easier, for Democrats in a post-‘nuclear’ Senate that’s 50-50.”
McConnell sent that warning even though it was he who eliminated the filibuster for supreme court nominees in 2017 to get Neil Gorsuch confirmed.
Despite those warnings, Stephen Spaulding, senior counsel for public policy and government affairs at Common Cause, a government watchdog group, said that Democrats needed to keep every option on the table.
“Senate Democrats have the majority and they need to have the ability to govern,” he said. “This idea that it can be costless to filibuster, that you can essentially raise your hands behind closed doors and grind everything to a halt, is unacceptable.”