Enter the most likely current candidate for reform: the talking filibuster.
Sen. Joe Manchin III (W.Va.) is one of two moderate Senate Democrats posing the biggest obstacle to the left’s quest to get rid of the filibuster — the source of the effective 60-vote threshold. He and Sen. Kyrsten Sinema (D-Ariz.) have said there are no circumstances under which they would nuke the filibuster. Given that a majority of the Senate is needed to undo it — and Democrats have just 50 votes — that’s prohibitive for now.
Recently, though, Manchin suggested a middle ground — keeping the filibuster but making it more difficult. And now Biden too has signed on.
The idea is to require senators waging filibusters to actually talk at length on the Senate floor to sustain them — as they had to decades ago. It has previously been supported for years by Sens. Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.).
“If you want to make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can,” Manchin said on “Fox News Sunday.”
“I don’t think that you have to eliminate the filibuster; you have to do it what it used to be when I first got to the Senate back in the old days,” Biden said. “You had to stand up and command the floor, you had to keep talking.”
It’s a valid proposal, but it’s also hardly a fail-safe, and the history of the filibuster shows why.
The benefits of reinstating the talking filibuster are readily apparent. It makes senators who want to hold up legislation actually put their mouths where their votes are — at length.
A pair of professors from Loyola Marymount University recently summed up the case:
First, it would make obstructive use of the filibuster more costly to use, and therefore hopefully more rare, deterring frivolous filibusters and give the minority an incentive to conserve its use for the issues of greatest import.Second, a talking filibuster would also make obstruction more transparent. Instead of quietly filing their objections with the Majority Leader’s office, filibustering senators would have to publicly defend their position over multiple days and expose their arguments to public scrutiny.
The big drawback, though, is that all that talking could be used for other purposes by the opposition. The Georgetown University Law Center’s Josh Chafetz outlined how such tactics could delay other action in the Senate, including confirmations of the president’s nominees:
Bloomberg News’s Jonathan Bernstein summed it up in response to Chafetz’s tweet: “The basic reason we don’t have talking filibusters is to protect the majority party, not the minority party.”
And indeed, the “silent filibuster,” as we now know it, actually stemmed from another effort to scale back the filibuster. In the mid-1970s, the increasing use of the filibuster led to a bipartisan effort to rein it in. While it previously required two-thirds of senators present to vote to end debate, the threshold was changed to three-fifths of the entire Senate (i.e. 60 votes).
But in another perhaps well-intentioned effort to reduce the filibuster’s influence, senators voted to allow other business of the Senate to proceed even as legislation was being held up. This, rather quickly, became the “silent filibuster” that is pervasive today, and it increased the use of the tactic.
Undercutting this reform, however, the Senate contemporaneously adopted a rule that gave the filibuster new strength. No longer would a filibuster delay all Senate business. Instead, new Senate procedure would create a dual-tracking system that allowed the body to toggle between different bills so that a bill facing a filibuster was “kept on the back burner” until a vote for cloture could be successful. This meant that no one observing the Senate would likely realize that a bill was being filibustered, since no one had to take the floor and stay there. This significantly reduced the public relations disincentive to filibuster and made it practically invisible to the public and the media. The talking filibuster had died; all a senator needed to do was indicate an intention to filibuster to move a bill to the end of the queue or “the back burner.”
Since then, those seeking to change the rules have occasionally invoked the talking filibuster as a threat. Then-Senate Majority Leader Harry M. Reid (D-Nev.), while pushing narrow changes to filibuster rules on judicial nominees in 2013, said, “We have this crazy idea … that if we’re going to have a filibuster, you have to stand and say something, not hide in your office someplace.”
As with the notion of revoking the filibuster altogether, it’s a nice idea in theory, but one that comes with all kinds of potential unintended consequences. I’ve argued before that the battles for the House and the Senate are set up in Republicans’ favor — more so than the national popular vote would suggest — which means any momentary gains or even very significant legislation using a 50-vote threshold could be just as quickly offset by future elections — including a likely adverse one for the Democrats in 2022, which history suggests will be difficult for them. Democrats have argued that Republicans would just nuke the filibuster themselves if they could, but they didn’t in the first two years of Trump’s term, when they had full control of Washington.
A companion proposal that might actually be more significant would be to require all 41 senators blocking a bill to be present on the floor — rather than just to require one of them to be constantly talking. Lining up speakers to sustain a filibuster would be comparatively easy, if arduous for whoever was on the floor at that time.
There is perhaps a way in which Democrats could reinstall the talking filibuster while allowing for other legislation to proceed in the meantime. But as the debate in the 1970s showed, having those two things coincide would be very difficult — especially given how tough it will be to pass virtually any real changes with just 50 Democratic votes.
And if nothing else, Republicans have proved much more adept at using the Senate rules to their advantage than have Democrats. A quick fix is always an attractive idea. But filibuster changes aren’t nearly so neat as the current reformists would like it to be — either today or five decades ago.
Clarification: This post has been updated to better reflect the change in the threshold to defeat a filibuster in the 1970s.