Seen on a TV in the Senate Press Gallery, Sen. Ted Cruz, R-Texas, speaks during the seventh hour of his 2013 filibuster in opposition to the Affordable Care Act. President Biden is advocating for a so-called talking filibuster. Charles Dharapak/AP
Many Democrats hope President Biden's endorsement of changing the Senate filibuster, to one in which a senator actually has to talk for potentially hours on end, could mean greasing the wheels for major progressive priorities.
"You have to do it," Biden, a former longtime senator, said during an ABC interview that aired Tuesday night.
It was an about-face from his prior stance against changes to the Senate procedure.
"What it used to be when I first got to the Senate back in the old days, you had to stand up and command the floor. You had to keep talking," Biden said. "That's what it was supposed to be."
It's a common misconception that senators are already required to do what Biden and many other Democrats want to see enacted. But despite the filibuster's origins — and depictions in movies like the 1939 film Mr. Smith Goes to Washington — senators do not have to stand and talk seemingly endlessly to delay an outcome.
All it takes in today's U.S. Senate is a few keystrokes from a staffer, who sends an email registering a senator's objection and triggering a 60-vote requirement to advance a bill to a final up-or-down vote, without having to make a speech or any other effort.
While many Democrats are advocating for a so-called talking filibuster, they do not appear ready to nix the 60-vote threshold to advance legislation once a senator stops speaking. But a number of Republicans worry that this is a first step down that path, as Democrats continue to run into roadblocks on legislation they want passed.
Democrats believe it has simply been too easy for Republicans to obstruct their full agenda, which includes sweeping voting-rights legislation, an infrastructure overhaul and a federal minimum-wage increase.
"It's getting to the point where, you know, democracy is having a hard time functioning," Biden said on ABC.
Now that the president's COVID-19 relief bill has passed — with only majority support, using a Senate process not requiring Republican support — Democrats see gridlock on the horizon. But the popularity of the relief bill, despite passing along party lines, has perhaps emboldened Biden to go along with measures he might have previously been less willing to back.
But Republicans won't be going down without a fight. GOP Senate leader Mitch McConnell, who ramped up the use of the filibuster during the Obama years, said Tuesday that its demise would lead to a "scorched-Earth" Senate.
And experts warn the talking filibuster change wouldn't make it as simple as many in the Democratic base might hope to pass major legislation.
Not as easy as it sounds
An increasing number of Senate Democrats feel that a talking filibuster would make it harder for Republicans to stand in the way of every major piece of legislation.
But it's not as simple as it seems.
"The talking filibuster probably sounds more effective than it probably would be in practice," said Sarah Binder, author of Politics or Principle? Filibustering in the United States Senate and a professor at George Washington University.
On the one hand, Binder said, it would seem to put the burden on the minority and make it pick legislation it is really opposed to and is willing to "go all out" to oppose.
But the responsibility would likely quickly turn back to the majority — and at inopportune times, literally.
Imagine a scenario in which a senator was holding the floor in the middle of the night and they look around and see there aren't many opposing senators in the chamber.
"There really is not a quorum on the floor" at that point, Binder said, noting that a majority would be needed to keep the Senate in session. The senator could then "note the absence of a quorum and, all of a sudden, the majority, who wants to get to a vote, the onus is on them to generate 51 senators in the middle of the night."
In this new reality, if the majority can't produce the votes, the Senate goes home.
"Now, you might say, 'Oh that's not so bad,' " Binder said, "but it is bad if you're the majority, and your point is to get to a vote, which is what the filibuster prevents."
That could produce a situation in which senators have to be at the Capitol at all hours of the night.
And it's something Republicans are already plotting.
"Whoever was in the majority would constantly have to have 50 senators in the building to do anything," said a former senior Senate leadership aide, who requested anonymity due to concerns that speaking about politics could jeopardize their current employment. "If the Democrats want to live in the Capitol, they can do that, but they'd have to be there."
And that includes Vice President Harris, the former aide noted, because the Senate is split 50-50. She would be needed to break ties on anything Republicans force a vote on — even, for example, starting the Senate before noon or adjourning for the day.
The pendulum "would swing hard"
Republicans accuse Democrats of being hypocritical in their push to weaken the filibuster. They note that Democrats employed the filibuster plenty when they were in the minority under Presidents George W. Bush and Donald Trump, and they point out that Democratic leadership did not seek similar filibuster reform when a Republican was in the White House.
They also say McConnell faced pressure from Trump to do away with the filibuster and refused, and that Democrats are only doing this now because they aren't getting their way.
Senate Minority Leader Mitch McConnell, R-Ky., leaves the chamber Tuesday after criticizing Democrats for wanting to change the filibuster. J. Scott Applewhite/AP
Democrats' threat has incensed McConnell. After word began to get around Capitol Hill this week that Democrats were potentially serious in considering changes to the filibuster, the Republican leader took to the Senate floor and excoriated the other side.
He warned that if Democrats go this route, if and when Republicans are in the majority again, they will push partisan bills, like anti-union and anti-abortion legislation, defunding Planned Parenthood and "sanctuary cities," increased domestic energy production, expanded gun rights and even harder-line immigration policies.
"The pendulum," he threatened, "would swing both ways, and it would swing hard."
Democrats appear to have had enough
Democrats gained momentum for the push to reform the filibuster this week when West Virginia Sen. Joe Manchin, a defender of the 60-vote threshold, said Sunday he would be in favor of making the filibuster "more painful."
"If you want to make it a little bit more painful, make them stand there and talk," Manchin said on NBC's Meet the Press, "I'm willing to look at any way we can."
And then Biden's interview seemed to break open the dam.
"I think a talking filibuster is entirely appropriate," Sen. Jon Tester, D-Mont., said Wednesday, adding, "This is the way it always should have been."
"The president recognized that the government of the United States can't do its job if it's paralyzed," said Sen. Jeff Merkley, D-Ore., who has long advocated for filibuster reform. "So it's very much appreciated."
While Democrats take McConnell's threats seriously, they are mostly shrugging them off. They feel they've been left with few to no options to pass legislation they believe would make a difference in people's lives.
"The filibuster is still making a mockery of American democracy," Sen. Dick Durbin, D-Ill., long seen as a Senate institutionalist, said Monday. "The filibuster is still being misused by some senators to block legislation urgently needed and supported by a strong majority of the American people."
It all sets the stage for a pitched partisan fight to come, not about just how the country is governed, but also how the future of American politics functions.
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