With the end of the year quickly approaching, Democrats are searching for the path forward for voting rights legislation in the next week. And that path, no matter what, must contend with the filibuster.
The Senate only requires a simple majority, or 51 votes, to actually pass a bill after debate has ended. But, since it takes 60 votes to close debate, the 60 vote threshold — known as the filibuster — is effectively the requirement for passing most bills.
Last week, we saw the Senate make a filibuster exemption for a vote to raise the debt ceiling, a workaround of Senate rules for the sake of public interest. It begs the question — why not voting rights?
Well, the Freedom to Vote Act or John Lewis Voting Rights Advancement Act may be next. Sens. Tim Kaine (D-Va.), Jon Tester (D-Mont.) and Angus King (I-Maine) are reportedly working together on rules reform discussions. Even Sen. Joe Manchin (D-W.Va.), who has previously resisted calls to eliminate or create a carve-out to the filibuster, is in conversation with Republican colleagues about smaller procedural reforms. No matter which options Democrats consider, they will need all 50 members of their caucus on board to enact the change. Today, we review exactly what those changes could look like.
Reforms to the filibuster aren’t new — there have been exemptions and workarounds for decades.
Numerous senators, including a handful of Democrats, tend to argue that the filibuster is an absolutely central feature to the Senate, and without it, bipartisanship, minority rights and democracy itself may falter. However, those arguments overlook the fact that the Senate has routinely abandoned the 60-vote threshold when necessary for legislative progress.
The yearly budget reconciliation process requires only 51 votes. As do trade agreements, repealing of executive branch regulations under the Congressional Review Act and actions under the National Emergencies Act or War Powers Resolution. In 2013, in the face of Sen. Mitch McConnell’s (R-Ky.) unprecedented filibustering of President Barack Obama’s executive and judicial appointments, then-Majority Leader Harry Reid (D-Nev.) removed the 60-vote filibuster for all presidential nominees except those to the U.S. Supreme Court. McConnell extended this rule to include Supreme Court appointees in 2017.
Sen. Elizabeth Warren (D-Mass.) wrote about the recent debt ceiling deal on Twitter: “Today’s vote is proof that it’s possible to create exceptions to the filibuster and move forward when it’s important. We did it this time, let’s do it again.” When the urgency is high, Senate rules have not stopped crucial legislation or appointments.
Given the pushback from several members in the Democratic caucus, abolishing the filibuster altogether is unlikely.
The most straightforward way to eliminate the filibuster is to change the language of the Senate’s standing rules, but any resolution to make such a change would first have to overcome a cloture vote with two-thirds in favor. More realistically, when lawmakers speak about eliminating the filibuster, they are referencing the “nuclear option:” a procedural loophole which allows a new interpretation of Senate rules to become precedent. This only requires a simple majority to make such a change.
The Senate could use the “nuclear option” to lower the threshold vote for cloture, or the end of debate, from 60 votes to a simple majority, consequently removing the filibuster. “We are looking at a whole package of reforms to make the Senate work better that we think could facilitate passage of voting rights, but would not abolish the filibuster,” Kaine reported last week.
In the face of Republican voter suppression, Democrats may be prepared to carve out an exemption for voting rights legislation.
Similar to how the 2013 rule change applied narrowly to certain types of presidential nominations, Democrats could eliminate the filibuster for specific issues like voting rights, democracy or constitutional measures. In doing so, Democrats would preserve the filibuster for other types of legislation but still pass the crucial voter protections that are necessary today.
But, there’s still resistance among some in the Democratic caucus — notably Manchin and Sen. Kyrsten Sinema (D-Ariz.) — to such a wide-sweeping exemption. However, pressure has been building over the past few months, with Senate Republicans continually stalling crucial voting rights legislation like the For the People Act, a revised compromised version of the For the People Act and a bill to restore the Voting Rights Act (VRA). It’s unclear if any of the hesitant senators have been swayed by Republican intransigence, but public pressure to pass the needed legislation this year has greatly increased.
There’s serious consideration around reinstating the “talking filibuster.”
In previous decades, senators were required to stand and debate the bill for the entirety of the time they wished to block the vote, known as a “talking filibuster.” This criteria was removed in the 1970s, and instead, any senator who wants to trigger a filibuster today can do so by simply standing and saying, “I object.”
In 2012, Sen. Jeff Merkley (D-Ore.) proposed bringing back the “talking filibuster.” In his proposal, if there are no senators who intend to maintain a filibuster present to speak on the floor, “the presiding officer of the Senate would rule that the period of extended debate is over” and the “Majority Leader would then schedule a simple majority cloture vote on the bill.”
Merkley critiqued the silent filibuster as invisible to the American people: “Citizens witness the paralysis of the Senate by seeing inaction on the Senate floor…. Not only can this weapon be utilized with little investment of time and energy, but the leadership of the minority can obstruct the Senate while escaping public accountability.”
Similarly, Manchin expressed earlier this year that he was open to making the process of initiating and maintaining a filibuster “a little more painful.” Since a filibuster can be used multiple times during the course of a single bill’s lifetime, one hope is that this reform would reduce the frequency of filibusters, especially against procedural motions.
There are a handful of other reforms on the table that either make it harder to initiate or easier to break the filibuster.
All of the filibusters used in the past few months against voting rights legislation have been against “motions to proceed,” or opening the debate and consideration on a bill. One reform idea is to change the Senate rules so that only a simple majority is needed to open debate. The filibuster would remain intact for votes to pass the legislation, but this would ensure that the policies are at least debated in what is supposed to be “the world’s greatest deliberative body.”
Other options include lowering the cloture threshold from 60 to 55, for example. This could be done for all legislation, or just for those that involve voting rights. However, in today’s Congress, there are no GOP moderates on voting rights, meaning this reform would not advance voting rights legislation unless the threshold was lowered to 51, which brings us back to abolishing the filibuster.
In 1995, and again in 2010, Sen. Tom Harkin (D-Iowa) introduced a proposal to gradually reduce the threshold to end a filibuster from 60 votes to a simple majority over the course of eight days. “Under my proposal, the minority members would have ample opportunity to debate an issue, try to shift public opinion, and attempt to persuade their colleagues,” wrote Harkin in an op-ed. “However, the minority would no longer have the power to brazenly block the majority from legislating.”
As we near the end of 2021, the threats to democracy are closing in. Voters are starting to feel the effects of new voter suppression laws, Republicans are drawing gerrymandered districts and Big Lie conspiracists are ramping up 2022 campaigns for key election administration positions. Senate Democrats who understand the urgency and gravity of these threats know that there are a few options on the table, but they all require one course of action: filibuster reform.