The Washington PostDemocracy Dies in Darkness

The filibuster debate is (maybe) coming to a head on voting rights. Here’s what could happen.

A man holds an anti-filibuster sign with a depiction of Senate Minority Leader Mitch McConnell (R-Ky.) outside Capitol Hill in September. (Jacquelyn Martin/AP)
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Months-long talks among Democrats in Congress about how to pass voting rights legislation over Republican objections are getting more serious — and more urgent.

“We had better come up with some way to get around it,” Rep. James E. Clyburn (D-S.C.), the House majority whip, recently warned his Democratic colleagues in the Senate, “because this democracy is teetering on collapse.”

Democrats want to pass the bill before the end of the year, when it might be too late to make changes to how elections in key states are run for the 2022 midterm elections.

The biggest (but not only) Democratic opponent to weakening the filibuster is Sen. Joe Manchin III (D-W.Va.). On Tuesday he met with a group of moderate Democratic senators to gauge his openness to tweaking it so Democrats can pass a voting-rights bill they’ve all coalesced around. There was no immediate agreement, Manchin told reporters.

“All of my discussions have been with bipartisan, Republicans and Democrats,” he said, not committing to anything. “The rules change should be done to be where we all have input in this rules change because we’re going to have to live with it.”

If all 50 Senate Democrats do get onboard, the Senate’s centuries-old procedure for blocking legislation could be eroded.

Here are the options Democrats seem to talking about most, ranked by likelihood of them happening.

Least likely: Go nuclear and get rid of the filibuster entirely

The filibuster is probably a goner, eventually. Over the past decade, senators on both sides of the aisle have eroded the filibuster so the minority party has less and less say. “The Senate is on this long march toward majority rule,” said Sarah Binder, a legislative expert with the Brookings Institution.

But it probably won’t happen this Congress. A majority of senators must agree to a rules change, and Manchin isn’t the only Senate Democrat opposed to making such a big change to how the Senate works (even as Democratic Party leaders like former president and senator Barack Obama urge the Senate to get rid of the filibuster).

Manchin has said absolutely no way would he vote to dispose of the filibuster completely. That’s a pretty firm line, and it would be remarkable if he backed off. Fellow Democratic Sen. Kyrsten Sinema (Ariz.) is also vocal about wanting to keep the filibuster. Other Democratic senators are more quiet in their opposition. The Senate is wary of becoming like the House of Representatives where the minority party has little-to-no say. And while it might ultimately happen, a 50-50 Senate with the swing vote being a Democrat from a deep red state isn’t conducive.

Also not very likely: Keep the filibuster as-is

The filibuster is going to erode when one party wants a policy enacted more than they want to protect the minority’s rights. Democrats’ desire to expand voting rights and curb partisan gerrymandering — before they might be locked out of the majority in the House of Representatives for years to come — could come close to that.

Democratic lawmakers see voting rights legislation as nothing short of necessary to protect democracy after former president Donald Trump tried to overturn his election loss.

“If forced to choose between a Senate rule and democracy itself,” wrote Sen. Angus King (I-Maine) in March, “I know where I will come down.”

The party is also getting lots of pressure from its base. Voting-rights advocates and civil rights groups are frustrated that Democrats have been unable to push through this key campaign promise. The Senate has voted several times on several different versions of this bill, and Republicans have blocked it every time.

What is the filibuster?

Possible: Tweak the filibuster by carving out a one-time exception to voting rights

The Senate can modify its rules however it wants. So if senators want to end the filibuster just for one item, like a bill on voting rights, they can do that with a simple majority vote.

A number of Democrats in Congress see this as a less-dramatic option. Election reforms can pass over Republican objections, but the filibuster is still intact for another day, like when Democrats are in the minority and want to use it to stop Republican legislation.

But senators need all 50 Democrats onboard for this, and Manchin may not be one of them. He’s said earlier this year that he “can’t imagine” changes like this to the filibuster out of concern — an accurate one, some parliamentary experts say — that it’s a slippery slope to ending the filibuster entirely. What’s to say that Republicans, when they get in power, won’t make carve outs for legislation whenever they please?

But earlier this week, he simply told reporters “We’re talking about that.”

(Manchin did support a carve out for filibustering the debt ceiling last week, but that was an elaborate and one-time compromise between Senate Democratic and Republican leaders to avoid a default that he had little to do with.)

An update; On Wednesday, Sen. Kyrsten Sinema (D-Ariz.) told Politico in a statement that she opposes weakening the filibuster, though she didn’t comment on specific options. So if Manchin could be brought on board, Democrats would have to convince Sinema, too.

Most likely: Make the filibuster more painful to execute for the minority party

The filibuster is a weird creature. A single senator can block legislation by just threatening to do it. That threat is enough to require 60 votes in the Senate to advance bills.

What if, the thinking goes among some Democrats, the Senate returned to the old days when senators had to actually launch a filibuster: the talking filibuster.

That might make filibusters less common, because who wants to stand on the Senate floor and talk for hours or days on end? It would be a battle of wills — the minority party’s willingness to undergo physical discomfort to stop legislation, and the majority party’s willingness to wait it out. (See Sen. Ted Cruz (R-Tex.) reading “Green Eggs and Ham,” or Sen. Marco Rubio (R-Fla.) quoting Jay-Z and Wiz Khalifa.)

But senators could use this to stop up all Senate business. And this proposal doesn’t actually end or even substantially change the filibuster. After a senator is done talking, current Senate rules say they need to muster 60 votes to end debate.

That’s also why this is the likeliest option, to take the filibuster literally. It makes the filibuster more difficult to undertake but keeps it intact.

Though any compromise that keeps the filibuster intact likely means Democrats still don’t have enough votes to pass voting-rights legislation.

This has been updated with the latest.