Over his 36 years in the Senate, Joe Biden personally threatened to filibuster legislation twice.
“I quite frankly was going to attempt to filibuster this bill, but I think that — and I’m not being facetious when I say this — the wisdom of the chairman is correct,” Biden said on the floor at the time. “I probably will end up no better off, even if I succeed … in terms of what would come out of a continuing resolution.”
But in recent years, Biden’s support for the filibuster has waned both as the number of cloture motions in the Senate spiked and also after he moved from the Senate to the executive branch. He now describes it as a Jim Crow-era relic that needs to be changed. And Biden himself at times voted against invoking cloture even as he touted his record of never conducting a filibuster.
Now, more than a decade after Biden left the Senate, the defense of the filibuster that he gave many times over his decades-long Senate career is surfacing again as Senate Democrats weigh limiting or eliminating the legislative filibuster. You can watch what Biden has said about the filibuster over the past three decades in the video above.
Since the Senate instituted its “two-track system” in 1970 — which allows the Senate to continue to act on legislation and nominations even amid the filibuster of another item — cloture motions have become the closest measurement of how frequently filibusters, or the threat of a filibuster, have been employed. But while cloture motions do give an indication of when the Senate has been required to garner 60 votes to proceed on legislation or a nominee (if all 100 senators are present and voting), they do not necessarily indicate whether a senator planned to filibuster the underlying legislation or nominee.
During the debate on the crime bill in 1994, Biden said Senate legislation — including gun-related amendments that might be added to the bill — required 60 votes to proceed and said it was a senator’s “right” to attempt to block a bill or amendment via that threshold.
When Republicans threatened to invoke the “nuclear option” for judicial nominees in 2005, meaning a simple majority of senators could approve them, Biden slammed it as a “power grab by the majority party” and said the filibuster is “about compromise and moderation.” When Democrats invoked the “nuclear option” for most nominees eight years later, Biden supported it.
“I’ve never seen a time when the operating norm to get anything passed was a supermajority of 60 votes,” Biden said in 2010, 16 years after he said exactly that.
“Every time I’ve gotten to this desk where the manager of a bill stands in order to get a crime bill, I’ve needed 60 votes, every time,” Biden said in 1994. “Not 51 — 60. Because there is a filibuster or there’s a point of order … 60 votes. Now, that is their right.”
It is not clear that Democrats even have the votes to tweak or eliminate the legislative filibuster — the entire Democratic caucus would probably need to support such a move, and multiple Democratic senators, including Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), have opposed doing so.
But if Biden’s history is any guide, there is always the possibility of evolving on the filibuster based on one’s vantage point — and one’s opponent’s intransigence.