What Biden’s Talking Filibuster Could Look Like

When President Joe Biden was first elected to the Senate in 1972, the filibuster was rarely deployed, and when it was, it could be beaten back by a vote of two-thirds of the Senate. That almost never happened, and instead the threat of a filibuster would sink legislation, not because the majority couldn’t overcome it but because they didn’t want to waste a few weeks on it and had other pressing business to get to. In 1975, the rule was reformed to lower the threshold from 67 down to 60, though it was still rarely used.

The Senate that Biden grew up in — remember, he was 29 when he was elected — largely passed bills by a simple majority vote, including controversial bills. When the debate was over, even senators who opposed the underlying bill would vote yes on what’s known as “cloture,” which means closure of the debate. That began to change, first with Harry Reid, D-Nev., as Senate minority leader, determined to fight President George W. Bush, but went into overdrive under Senate Majority Leader Mitch McConnell, R-Ky. McConnell effectively raised the threshold any legislation needed to 60 votes in order to undermine President Barack Obama. (For more on the history, this Deconstructed episode from last month has you covered.)

For somebody like Biden, that phenomenon — that legislation needs 60 votes to pass — is a relatively new innovation, not the beating heart of the Senate as some people claim. And nobody knows that better, perhaps, than Biden himself. He alluded to his old-school cred in an interview with George Stephanopolous published Tuesday evening by ABC.

“I don’t think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days,” Biden said. “You had to stand up and command the floor, you had to keep talking.”

“You’re for bringing back the talking filibuster?” Stephanopulos asked.

“I am. That’s what it was supposed to be,” Biden said. “It’s getting to the point where, you know, democracy is having a hard time functioning.”

Notice that Biden is using the credibility he owns as a Senate traditionalist — he was elected six years before I was even born, and I’m getting old — to make the case that reform is necessary to defend democracy and return the Senate to the working condition it was in when he got there. It’s no secret that Biden was far from progressives’ first choice to win the Democratic nomination, but he may possess a unique ability to disarm centrist and conservative Democrats who otherwise might oppose the same project or program if it was proposed by Sens. Bernie Sanders, I-Vt., Elizabeth Warren, D-Mass., or, really, anybody but Biden.

Sen. Ted Cruz, R-Texas, recently criticized Biden as “boring but radical.” While Cruz is never serious about anything, and Biden is far from a radical, there’s some truth, even if Cruz doesn’t recognize it, behind that point. A $1.9 trillion stimulus just scans among the public as more “reasonable” when coming from Biden than it would from a Democrat whom Republicans could more easily paint as a radical, a task that they managed to accomplish with Obama even though he governed as a centrist. There is a genuine only-Nixon-could-go-to-China element to Biden’s gentle evisceration of the filibuster.

Had Sanders or Warren suggested changes to the filibuster, you can be sure that West Virginia Sen. Joe Manchin, the self-styled exemplar of the moderate Democratic centrist, would be hearing none of it. Instead, in his interview Tuesday night, Biden was merely following Manchin, who has recently opened up to the idea of bringing back the “talking filibuster.”

How Biden Can Do It

So what would these new filibuster rules look like?

Nobody yet knows, but from conversations with Senate sources over the past few weeks, months, and years, I can take a few stabs. First of all, the 60-vote threshold for cloture has to go. The current rules put the onus on the majority to marshal 60 votes, which no majority is likely to have for the foreseeable future.

If Democrats do manage to reform the filibuster, you have to assume this much: They will not go through all that trouble simply to leave McConnell with a veto over their agenda. How they strip that veto remains to be seen, but the new rules would shift the onus from the majority, which today needs 60, to the minority, which today barely has to show up. As Manchin says, you have to extract a cost for the minority to obstruct, to make them actually be there on the floor. “Maybe it has to be more painful, maybe you have to make them stand there,” Manchin told Fox News earlier this month.

If Democrats do manage to reform the filibuster, they will not go through all that trouble simply to leave McConnell with a veto over their agenda.

So if cloture can’t stay at 60, how do you get it to a place where a majority can reasonably reach it? One solution is to deploy the “present-and-voting” approach. The possible rule goes like this: If three-fifths of senators present and voting support cloture, then cloture is invoked, and the debate is over. Democrats who support the notion of 60 for cloture could think of three-fifths as a synonym. That would mean that if all 50 Democratic senators showed up at 3 a.m. to call the vote, Republicans would need, by my math, 34 senators ready to vote no. They can do that sometimes, but eventually Democrats — or any future majority — would wear them down and find a moment where enough of them are literally sleeping that they can move it across the floor.

Another approach could be to require 41 votes to sustain a filibuster at any time. Under the current rules, if a cloture vote gets 59 yes and zero no votes, the no votes still win. You could flip that to say that unless 41 senators insist that the talking continue, the debate is over. And again, if that vote is called at 3 a.m., there may not be 41 senators able to get there within the allotted time.

The present-and-voting standard has a long Senate tradition — longer, in fact, than the 60-vote threshold. In 1917, as the U.S. was gripped with war fever, a handful of anti-war senators filibustered their way into Senate adjournment, blocking a vote on a declaration of war against Germany, a story recounted by longtime Senate aide Adam Jentleson in his new book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.” Amid an uproar, the Senate implemented a cloture rule that allowed two-thirds of those present and voting to bring debate to an end. When the threshold was moved down to three-fifths in 1975, the present-and-voting standard was replaced by an affirmative need to hit 60. Biden and Manchin’s reform would return it to how it was when Biden entered the Senate.

In a roundabout way, Manchin confessed to Fox News that the current iteration of the 60-vote threshold is on the chopping block. “There’s different ways to get to that 60 vote, and people have to make sure that they’re willing to show up — it would be great, don’t you think, if someone was down there telling you why they’re objecting,” he said.

To parse that a bit, consider the first piece. How are there different ways to get to 60 votes? On its face, that’s absurd: There’s only one way to get to 60. So what is Manchin actually trying to say there? If the vote is on the question of whether debate should be extended or should be brought to a close — cloture — it’s not unreasonable to assume that anybody not voting is also not interested in debating anymore. If they were, they’d be there. Flipping the onus to the minority to marshal votes would align with the spirit of Manchin’s answer. What he’s doing is counting the nonvotes with the yes votes. So unless the minority can show that they have 41 votes to keep debate going, it’s assumed that the majority has 60.

Both of those approaches — three-fifths present and voting or a requirement for 41 senators to be on the floor at any time to stop cloture — would satisfy a key requirement of Manchin’s: that the minority has a real chance to be involved. “You have to give the minority the ability to object or involve themselves,” Manchin said — and I’d emphasize the “or” there. The minority would have substantive involvement in the form of floor speeches but could also offer amendments to the bill.

Defenders of the current “silent filibuster” warn that a 50-vote threshold would turn the Senate into some sort of rump version of the House, where party leadership just muscles through bill after bill. But the talking filibuster would make that so hard for the majority that the chamber would retain its reputation for, to put it politely, deliberation. It just might, in the end, actually get something done.

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