This week, Majority Whip Dick Durbin took to the floor with the strongest anti-filibuster speech yet. He spoke at length about returning to a talking filibuster, saying the current procedure “has turned the world’s greatest deliberative body into one of the world’s most ineffectual bodies.”
The filibuster used to require deliberation, or at least it forced the senator opposing a bill to make their case on the floor in debate, sometimes lasting for hours and hours. That’s not how it works anymore. All it takes is one senator to say they are opposed to a bill moving forward—they don’t even have to say it on the floor—and they’ve started a filibuster. A bill can’t progress in the Senate without 60 senators saying they want it to, no matter if it has majority support—59 senators could support it, but if they can’t find one more, they won’t have the opportunity to vote on it. For example, Democratic Sen. Joe Manchin teamed up with Republican Sen. Pat Toomey on a gun background check bill following the 2012 massacre of little school children at Sandy Hook school in Newtown, Connecticut. Republicans blocked it with just 46 votes—a majority of 54 Republican and Democratic senators supported the bill but it failed. No Republican had to stand on the floor and say why they felt the slaughter of little children did not demand a change that would keep weapons of war out of the hands of domestic terrorists. They just voted “no.”
So it seems that Democratic leadership, including Biden, have coalesced behind the idea of a talking filibuster, and that might even have been negotiated with at least one of the recalcitrant Democrats, Joe Manchin. Following his day of obstruction on the COVID-19 relief bill, Manchin made the rounds of Sunday shows saying he’d be okay with making the filibuster “a little bit more painful, make them stand there and talk, I’m willing to look at any way we can.”
But here’s the rub with that: In subsequent interviews on following days, Manchin made it clear that he still wants to keep a 60-vote margin. He told Politico that there still has to be a 60-vote majority to overcome a filibuster, or a way that forces the opposition to come up with 41 votes to sustain it. Sen. Kyrsten Sinema goes even further, saying: “I want to restore the 60-vote threshold for all elements of the Senate’s work,” including all judicial and executive confirmations.
That’s a problem. Yes, it would force Sen. Mitch McConnell to make sure that he always has 41 Republicans at his beck and call, but he’s a spiteful enough bastard with enough spiteful bastards in his conference to do just that. But democracy is not going to be restored unless the most basic principle—majority rule—is restored in the Senate.
Biden was careful in his comments not to saying anything about abolishing the 60-vote requirement, as Durbin pointed out in an interview Wednesday morning. “He didn’t say that and as a student and creature of the Senate he certainly knows how to choose his words carefully on this subject. But I think he’s acknowledging the obvious: the filibuster has really shackled the Senate.” Biden was being “vague” about what exact remedy to use, Durbin said, “but that’s alright. I think he is acknowledging the fact that the filibuster has become institutionalized by Sen. McConnell. We now accept the premise that everything needs 60 votes.”
It is an accepted premise—a false one. Even the Capitol Hill press corps, who should know better, talk about the 60-vote margin required to pass anything as the norm, as though this has always been how it is. It’s not. When Biden entered the Senate in 1973, the filibuster was a rarity. From 1917 to 1970, there had been a total of 49 filibusters. In 53 years, 49 filibusters. Since McConnell’s takeover of the Republican Senate conference, there’s been an average of 80 votes each year to end filibusters. That doesn’t just block legislation, it ties the Senate in knots. Every cloture vote requires 30 hours of floor time, in which nothing else can be done.
So when McConnell threatens, “Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like,” it’s not anything we haven’t already seen from him. Which is Durbin’s exact response. “He has already done that. He’s proven he can do it, and he will do it again.”
The filibuster fight is going to happen soon, so we’ll see how it plays out. On the Senate floor Wednesday morning, Schumer promised he would bring the elections reform bill, the For the People Act, to the floor. The Senate hearing for the bill is scheduled for next week.