Senate Majority Leader Chuck Schumer (D-NY) is trying to modify the Senate’s Rules so that voting rights legislation can pass with just support from 50 Democratic Senators. It is clear that all of the Senate’s 50 Republicans take issue with the need for any Rules reform at all. And though formal changes to the Senate’s Rules require 2/3 of the Senate in support, the parties have in recent years forced reinterpretations of existing Senate Rules by a bare majority. President Biden is also now urging the Senate to act on a Rules reform package. But what will be in that package? A major change that allows a bare majority of Senators to pass the voting rights bill, with little or no Republican support? Or a more minor set of changes that allows for debate and that perhaps makes some special exception for voting rights bills?
Regardless, what is being overlooked is that modest changes to the filibuster would still leave in place its two main features — (1) a 3/5 supermajority threshold vote to invoke cloture (end debate); and (2) the ability of even just one Senator to block legislation or a nomination where there are not the votes to invoke cloture. This leaves room to appeal to Senators like Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) who have expressed opposition to outright repeal of the Filibuster for legislation. While advocates of major change to the Filibuster Rule (Senate Rule XXII) may be at least two votes shy, there are more tailored options that can be offered:
- No Filibusters on Motions to Proceed. When a motion to proceed (which triggers the start of debate on a bill) gets filibustered, the Senate never even debates the bill’s merits. So a filibuster of the motion to proceed has the perverse effect of preventing debate from ever occurring, which is the stated objective of allowing a minority to filibuster. This has left the world’s most deliberative body often in recent years unable to even begin to deliberate the pressing issues of the day. Making motions to proceed ‘non-debatable’ would solve that problem.
- Talking Filibuster. A “talking filibuster” or actual, live in-person filibuster requirement would hue to the traditional concept in most people’s heads about what a filibuster is. Senators would have to exhaust themselves in-person, conjuring up stories about senators putting salt in their pockets, reading from ‘Green Eggs & Ham’, late nights and staff or Senators sleeping in cots off of the Senate Floor, trading off in shifts. But just how logistically this new requirement would work is unclear. One eminent expert of the Senate’s Floor management once told me that the Senate can’t turn the lights on, or off, without Unanimous Consent. So how will the talking filibuster be enforced without impacting other business of the Senate? Still, Senator Manchin has indicated he could support something like this, and maybe the quest for 50 supporters will outweigh questions about feasibility.
- Requiring Those Filibustering to Actually Vote No. One irritant during filibusters is that those seeking to move forward and break a filibuster must vote to do so (at least 60 of them), yet the minimum 41 opponents need not show up to vote. In other words, the onus is on the supermajority. It is possible to revise Senate Rule XXII to structure an end to debate, where 41 or more Senators would have to vote no in order to keep the debate going (against cloture). This could have some effect around the edges, making surprise late night votes more potent and keeping filibustering Senators ‘in the building’ so to speak.
- Carveout for Voting Rights Legislation. Some Democrats are calling for putting an end to the filibuster for voting rights legislation only, arguing that those rights are different as the foundation of our democracy. Each political party has carved out aspects of nominations in recent years from the reach of the filibuster. So in that sense, there is precedent for a surgical strike. But again, feasibility and workability could be a challenge. For instance, could the next Senate reduce voting rights within the confines of the carveout? How does one define enhancing or reducing voting rights? And how much of a bill must be about voting rights in order for it to be excepted? 51%? What’s in the rest of the bill? Also, Senate Republicans may believe that a range of other issues have equal or greater heft than voting rights too. So as a result we could see a 50 vote arms race on the Senate Floor as control of the Senate flips back and forth.
In the end, perhaps discussions among the White House and Senate Democrats will result in an attempt to fundamentally restructure Senate Rule XXII and put an end to the filibuster in its entirety — or maybe they will reduce the threshold for defeating a filibuster from 60 votes down to 55 or some other number. There is no question that the U.S. House of Representatives operates efficiently on majority rule, debates virtually any important issue that the majority chooses to debate, puts an end to debate, votes and passes legislation.
The Senate would retain features that distinguish it from the House, even if it opts to relinquish this one important distinction. Some more modest options would not by themselves result in Senate passage of voting rights legislation. But in the barest of bare 50 Democratic Senate vote majority, no reform measure can survive any dissension in Democratic ranks. For Leader Schumer, we return to the initial question, what options have the votes of 50 Senators, and which if any of those options will he choose? At some point in the coming days or weeks, the Senate appears likely to end debate on that question and take a very consequential vote.