Despite their frustrations, Democrats don’t all agree about whether to abolish the filibuster, much less how to change it. Not every Democrat is on board with deploying what’s called the “nuclear option” — a procedural move by which a simple majority of the Senate could end debate and move to a vote on changing a rule.
Still, support for reining in the filibuster is growing. Even Sen. Joe Manchin III (D-W.Va.) — one of the Democrats’ most fervent filibuster defenders — has endorsed restoring the talking filibuster.
Today senators kill measures with a “silent filibuster”
The 1939 Hollywood classic “Mr. Smith Goes to Washington” made the “talking filibuster” famous. In the film’s iconic image, Jimmy Stewart as Sen. Smith pours his heart into a near-marathon performance on the Senate floor to expose corruption in a pending bill. In this approach, the winning team is the one with the greater resolve. Either the opposition gives up its attack on a bill and yields the floor, thus allowing the majority to advance to a vote — or the minority’s resolve to keep blocking a vote convinces the majority to pull the measure and move on to other Senate business.
But senators decades ago replaced talking filibusters with “silent” ones. Instead of forcing senators to talk interminably to block a measure, Senate leaders today lean on the chamber’s cloture rule. When the majority leader cannot get unanimous consent of all 100 senators to proceed to a vote, the leader files a cloture motion on the pending matter.
The cloture rule requires 60 votes to end debate. To beat this silent filibuster, the majority party must round up 60 votes. No longer must the minority talk a measure to death. Filibustering senators just have to prevent the majority from securing 60 votes for cloture.
Creating the silent filibuster was a bipartisan affair
Both parties were complicit in creating the silent filibuster. In a far less partisan Senate than today’s, the 1970s Senate often found itself tied in knots when contentious measures came to the floor. Majority leader Mike Mansfield (D-Mont.) in 1970 suggested that the Senate invent a second “shift” or “track” of legislation. When a filibuster blocked the first track, Mansfield simply asked unanimous consent of all 100 senators to set aside the filibustered measure and move onto a new bill on a different “track.” Mansfield’s change did not require the Senate to make a formal change in its rules. All he really did was ask for consent to start tracking.
Party leaders on both sides of the aisle thought tracking would help them make the floor schedule more predictable. But tracking also made it easier for senators to filibuster. Even threats to filibuster could be sufficient to move the Senate onto the second track. As the Senate became more partisan while blocking bills required so little effort, leaders filed an exponentially increasing number of cloture motions, routinizing the silent filibuster.
Senators are pitching ideas to bring back the talking filibuster. Sen. Richard J. Durbin (D-Ill.) this past week said it was time to stop letting senators “phone it in.” Under Durbin’s proposal, a senator who wants to block a bill should speak on the floor and refuse to yield. This would probably not require any changes in the rules.
Sen. Jeff Merkley’s (D-Ore.) more detailed proposal would require changing Senate rules. He suggests that if a Senate majority — but not 60 — voted for cloture, a period of extended debate would ensue. The filibuster would continue so long as a single senator is on the floor debating. But if they were to give up, the presiding officer would declare the debate over, bringing the majority leader to move to invoke cloture by simple majority vote.
The dilemma for reformers is that these sorts of changes would not necessarily shift the burden to the minority. First, filibustering senators might enjoy the limelight to rally supporters, raise money and advertise themselves. Second, a filibustering senator — say at 3 in the morning — could note the absence of a quorum. The burden then falls on the majority to produce 51 votes to make a quorum. If they fail to round up 51 senators, the Senate must adjourn for the day. That’s a win for the opposition whose goal is to delay or block a final vote, and a loss for the majority eager to get a vote on their bill.
Require 41 votes to block cloture
Political scientist Norman Ornstein advocates flipping the switch on the cloture vote. Under current rules, the entire burden rests on the majority to round up 60 votes for cloture — which, remember, cuts off debate. Opposing senators can miss the vote and still win, so long as there aren’t 60 votes for cloture.
Under Ornstein’s proposal, the burden would shift to opponents by requiring them to muster 41 votes against cloture. In theory that would turn up the heat on the minority to stay close to the floor. But over the past decade, almost every time cloture failed, the opposition turned out more than 40 votes.
Granted, majority parties would likely adjust their own tactics after changing the rules. They could file more cloture motions, so as to catch opponents unaware or to keep opposing senators on the floor to vote against cloture. But leaders rarely resort to these sorts of “surprise” tactics: Neither party’s senators really want to spend time hanging around on the floor.
Today’s slim Democratic majority has yet to agree on a reform path. But if Republicans obstruct votes the way they did in the Obama years, refusing to bargain and blaming the Democrats for failing to govern, Senate Democrats may indeed decide on how they want to curtail the filibuster.