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Opinion A talking filibuster will not help Democrats as much as some might think

The sun sets behind the Capitol dome in Washington in July 2019. (Erin Scott/Reuters)
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Many pundits have interpreted President Biden’s statement that he would support reinstituting the “talking filibuster” as something that could help Democrats pass their aggressive agenda. It actually is likelier to encourage more bipartisan legislation.

To understand why, one must understand Senate rules. Currently, a filibuster can occur whenever a senator declares he or she wants to debate a particular bill. That senator does not actually have to debate the bill; they need merely announce their intention to do so. This “debate” can be stopped only if 60 senators support a cloture motion, which would move the bill to a vote. If it appears that motion will fail, senators reasonably avoid the charade entirely and set the filibustered bill aside so they can take up other business.

The “talking filibuster” rule would revert the Senate to the process that governed the chamber before 1975. Back then, a filibuster could be stopped by two-thirds of those present and voting. Filibusterers had to be on or near the Senate floor — including in the middle of the night — or the number needed to get cloture and move to a vote would be much lower. Senators had incentives to speak on the floor, to make their case and to shine light on why they were blocking action on a bill they opposed. That is the classic version of the filibuster many people are familiar with from movies such as “Mr. Smith Goes to Washington.” Under this procedure, the Senate would immediately move to a vote on the bill if a senator could no longer be found to speak in person.

In theory, this burden would limit the number of bills that would be filibustered. That in itself would increase the Democrats’ ability to get some things done. But there are clearly matters Republicans would deem so important that they would mount a talking filibuster anyway. In those matters, which would also likely be matters Democrats deem crucial, the talking filibuster would damage Democrats as well.

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That’s because the Senate cannot take up any other business while debate is taking place on the floor. If the GOP starts a talking filibuster, Senate Majority Leader Charles E. Schumer (D-N.Y.) could not bring up any of Biden’s nominees for Senate confirmation. He could not move to confirm any judges whose nominations are pending. He could not advance other bills that have broader support within the Senate, nor could he initiate approval of any emergency legislation should the need for any arise. Once the filibuster starts, it stops the Senate dead in its tracks until the minority talks itself out.

There are some rules changes that could mitigate some of that collateral damage. Congressional scholar Norm Ornstein of the American Enterprise Institute argues that preventing a member from talking more than once or changing the cloture rules to place the burden on filibusterers to continue debate could reduce the time spent on such dilatory tactics. But even those would not prevent the Senate from coming to a standstill for too long whenever a substantial minority is dead set against a bill.

Faced with this obstacle, Democrats could choose to push forward across the board, sacrificing other objectives in pursuit of a major goal. Or they could take a different course that increases bipartisanship as a result.

The latter option would involve finding compromises that a substantial number of Republicans could support. This would surely disappoint progressives, as any compromises would entail giving up a lot of what they want. But it would also mean that they could get some victory, which is far less likely under current rules. Given no other alternative, it might be that many would prefer to get a few slices rather than none of the loaf.

The minimum wage is a good example. There clearly are not 60 votes to increase it to $15 an hour, as the left wants. But there is reason to believe that 60 senators might be willing to increase it to $10 or $11 an hour. A talking filibuster would give more leverage to those in the middle who support the compromise, which would force progressives to decide if they want to stop any increase in the hope of getting a larger one at a later point.

A talking filibuster could also encourage smaller, more targeted bills. The House-passed elections package, H.R. 1, is an obscene grab bag of every progressive voting-related measure imaginable. If it were divided up into discrete pieces, however, there are surely some that many Republicans would not object to and others that they might not care enough about to force a talking filibuster. Again, this would involve progressives giving up something now. But it could also lead to more getting done, and the move away from endless partisan confrontation could also soothe our tempestuous political waters.

Filibuster reform, like any other political matter, will lead to intended and unintended consequences. In this case, the unintended consequence of increased bipartisanship might be the most important — and the most beneficial to the country.

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