Pop culture usually depicts the filibuster with senators making lengthy speeches on the floor to indefinitely delay bills that they passionately oppose. Jimmy Stewart’s character in Mr. Smith Goes to Washington is perhaps the most iconic example; The West Wing and Scandal have offered more recent renditions. Indeed, people often use the word “filibustering” to describe non-Senate scenarios in which someone keeps talking to prevent others from having their say.
This isn’t actually how the filibuster works nowadays. Senators move to end debate—a vote known as cloture—to pass most bills, and it fails unless 60 senators agree to move forward. No lengthy speeches are required. No tests of endurance or feats of strength are necessary. All too often, the mere threat of a filibuster is enough to stop prospective legislation in its tracks. The world’s greatest deliberative body, as some senators wrongly call it, does a lot less deliberating than its public image suggests.
This arrangement mostly benefits fans of congressional gridlock, but for Democrats keen to pass President Joe Biden’s agenda, which is now moving steadily through the House of Representatives, the filibuster remains a fatal hurdle. Key constituencies within the Democratic Party’s universe, however, are spoiling for a fight and bringing pressure for change. There are indications that the pressure is being felt even by Democratic institutionalists who see the filibuster as the virtuous means by which the minority is heard.
Senate Minority Leader Mitch McConnell, perhaps sensing the shifting winds of the filibuster debate, threatened to grind the chamber to a halt if Democrats undermine the mechanism. “The Senate Democrats who are pressuring our colleagues from Arizona and West Virginia to reverse themselves are not just arguing for some procedural tweak,” he said on the Senate floor on Tuesday, referring to two Democratic senators—Arizona’s Kyrsten Sinema and West Virginia’s Joe Manchin—who are most likely to oppose ending the filibuster. “They are arguing for a radically less stable and less consensus-driven system of government. Forget about enduring laws with broad support. Nothing in federal law would be settled.”
“Let me say this very clearly for all 99 of my colleagues: Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like,” McConnell added. “None of us have served one minute in a Senate that was completely drained of comity and consent. This is an institution that requires unanimous consent to turn the lights on before noon, to proceed with a garden-variety floor speech, to dispense with the reading of lengthy legislative text, to schedule committee business, to move even noncontroversial nominees at anything besides a snail’s pace.”
These are unimpressive threats. Senate Republicans have provided no indication that they’re all that interested in deliberating or debating the issues of the day. In fact, their recently demonstrated preference for pointlessly gumming up the works suggests that McConnell has already tacitly endorsed a scorched-earth Senate. How else to read the fact that Wisconsin Senator Ron Johnson was permitted to force the clerks to read all 623 pages of the Covid-19 stimulus bill earlier this month just to delay the process.
As I’ve noted before, there are many good reasons to scrap the filibuster. But it’s not hard to see why Republicans wouldn’t want to play a part in a Senate where regular order is the norm: Under the current filibuster status quo, Republicans can quietly and anonymously put a hammer lock on moving legislation; the aforementioned strategy of blocking cloture ensures that no exchange of views takes place and that no single legislator has to take responsibility for calling in this legislative veto.
It’s no wonder that Manchin wants to bring back a little “pain” to this process. The senator, who essentially serves as the nation’s de facto prime minister, has signaled that he could accept a change that would bring the filibuster in line with its supporters’ claims—and make it much easier to overcome.
“The Senate is the most unique governing body in the world,” Manchin said on NBC’s Meet the Press earlier this month. “It’s deliberate. It’s basically designed to make sure the minority has input.… And now if you want to make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can. But I’m not willing to take away the involvement of the minority. I’ve been in the minority. I’ve been in the majority. And I can tell you the respect I have on both sides when I’ve been there should be, ‘I’ve got something to say, listen to me,’ and I want that to happen.”
In another Sunday show appearance, he made his point even more directly. “Would you consider if the Republicans just won’t go along with anything, reforming the filibuster?” Fox News’s Chris Wallace asked. “For instance, the filibuster doesn’t apply now to either budget rules—that’s why you had this reconciliation—budget issues, or to nominations. Would you consider extending exemptions to other issues? Or would you consider going back to the old filibuster, sort of like Mr. Smith Goes to Washington and Jimmy Stewart, where, you want to filibuster, it’s not an automatic 60 votes, you’ve got to stay on the Senate floor and keep talking.”
Manchin again stated his opposition to abolishing the filibuster outright. But he again said he would be willing to make it harder for a minority of senators to sustain—and thus easier for a majority of them to overcome. “The filibuster should be painful,” he told Wallace. “It really should be painful. And we’ve made it more comfortable over the years, not intentionally, maybe it just evolved into that. Maybe it has to be more painful. Maybe you have to stand there. There’s things we can talk about.”
What would a “talking filibuster” look like? In practical terms, it would still allow senators to block legislation from reaching a final vote. But that blockade would no longer be indefinite. Instead, senators who oppose ending debate would have to physically be present and hold the Senate floor, just like in movies and TV shows. A majority of senators could simply outlast those who staged the filibuster—unless, of course, the filibustering senator or senators managed to rally public support for their cause and chip away at the majority’s support for the bill in question.
It’s worth noting that the Senate’s rules already carve out multiple exceptions to the filibuster. It doesn’t apply to votes on presidential nominees for the executive branch and the federal courts, for example, after Harry Reid and Mitch McConnell invoked the nuclear option twice over the past decade. More importantly, the filibuster doesn’t apply to budget bills, thanks to a process known as reconciliation. This mechanism allowed the Senate to pass Biden’s $1.9 trillion stimulus package earlier this month, even though the arcane requirements of the process forced Democratic senators to eject provisions like a $15/hour minimum wage.
Republicans went through a similar process to pass one of Trump’s signature policy items in 2017: a massive package of tax cuts for corporations and wealthy Americans. In that case, reconciliation arguably made the bill worse than it would have been if the GOP had been able to bring it up for a vote without the filibuster. “Republicans in Congress chose to make the corporate tax changes permanent, while phasing out most tax changes to the individual tax code by 2027,” the Economic Policy Institute’s Hunter Blair noted in 2018. “They made this choice to comply with the arcane rules of budget reconciliation, which do not allow legislation that increases budget deficits outside the 10-year budget window.”
In other words, under the Senate’s current rules, senators need only 50 votes to cut Jeff Bezos’s taxes but must find 60 votes if they want to raise the minimum wage to $15/hour for workers in Amazon’s warehouses. These rules are a pretty good deal if you’re Mitch McConnell, who spent the last four years cutting taxes for the wealthy and stocking the courts with conservative judges with a simple majority. They’re not so great for Democrats, who face a substantially higher threshold for passing legislation that’s critical to their agenda, such as enacting a new Voting Rights Act.
The fact that major voting rights reforms now sit squarely in the crosshairs of a GOP filibuster only reveals the emptiness of McConnell’s gravest warning. “As soon as Republicans wound up back in the saddle,” he cautioned, “we wouldn’t just erase every liberal change that hurt the country. We’d strengthen America with all kinds of conservative policies with zero input from the other side.” Absent the passage of measures that will substantially shore up the right to vote against the GOP’s constant and ongoing voter suppression efforts, that’s what the future portends anyway.
Besides, McConnell’s warning that he’ll “strengthen America with all kinds of conservative policies with zero input from the other side” when Republicans retake the chamber may prompt some conservatives to ask why they weren’t doing that in the first place. Donald Trump certainly has. The biggest hurdle that Republicans face at the moment has nothing to do with arcane Senate procedures. Their right-wing wish list is far more hindered by the lack of public support for their proposals, which in turn puts future Republican majorities at risk if they are passed. How else does the Affordable Care Act remain the law of the land after a decade of Republican threats to repeal it?
The same can’t be said for Democrats: Americans generally support most of the agenda they’ve put forward, including measures on climate change and voting rights. If Democratic senators have to choose between a “scorched-earth Senate” and a literal scorched earth, that choice is easy. Or at least, it should be.