President Joe Biden advocated the Senate filibuster change Tuesday night, making him the Senate’s youngest Democratic veteran to advocate reforms that could make it easier for Senators to pass laws.
Biden, who served in the Senate for 36 years, previously resisted calls for a reform of the filibuster – even when other heavyweights of the Democratic Party such as former President Barack Obama joined a chorus of Democrats to modify or abolish the filibuster.
In an interview with George Stephanopoulos of ABC News, the president spoke out in favor of reforming the filibuster. After Stephanopoulos asked Biden whether he “has to choose between maintaining the filibuster and further developing your agenda”, the President initially replied with “Yes”. However, he then made it clear that he tends to support a middle ground between eliminating the filibuster entirely and maintaining existing rules that allow the Republican minority to block most laws unless 60 senators agree to that a law should be passed.
“In the past,” said Biden, “a senator who wanted to keep a filibuster going had to” get up and speak “and” keep talking. “
In other words, the president advocated a so-called “speaking filibuster,” a potential reform recently lukewarm support from Senator Joe Manchin (D-WV), another Senate veteran who previously opposed a filibuster rule change. In this context, at least one senator would have to be in the minority in the Senate and continue to speak in order to maintain a filibuster.
But as is so often the case with the reform of the rules, the devil is in the details. Depending on how senators drafted a new filibuster rule, this new rule could be a strong deterrent to future filibusters – or it could prove to be a paper tiger that does little to prevent the minority party from impeding legislation.
How to Design an Effective Talking Filibuster
The speaking filibuster has an unusual place of honor in American culture – think of the climate scene from the 1939 film Mr. Smith Goes to Washington, in which the title character speaks against corruption in legislation until he finally collapses from exhaustion.
In reality, however, a requirement that a single Senator keep the floor in order to keep the filibuster going is unlikely to end so dramatically. And such a requirement can’t even do much to move legislation forward.
In 2012, Senator Jeff Merkley (D-OR) suggested that “Senators who deem additional debate necessary must ensure that at least one Senator is present and presenting their case.” If no such Senator was present, would the filibuster end and whatever the filibuster senators wanted to block could be passed by a simple majority.
Such reform would make great television, but it is far less likely that many laws will pass the Senate. With 50 Republicans in the Senate, it wouldn’t be difficult for the GOP caucus to work in shifts to keep a filibuster going for as long as needed.
Indeed, as my colleague Andrew Prokop notes, “it was the Senate majorities that rejected the” speaking “requirement because they believed it wasted too much Senate time.” In the worst case, a speaking filibuster request could give senators who like to stand in the stands even more incentive to file a filibuster bill.
Biden’s comments on the filibuster to Stephanopoulos were brief, but he seemed to suggest a slightly more effective version of the filibuster than Merkley had suggested in 2012. “Once you’ve stopped talking,” suggested Biden, “someone could move in and say, I move the question of” – A motion to “move” a “question” can refer to a procedural maneuver that will make the debate about a Matter ended and a vote should be forced.
In other words, the president seems to be suggesting that a majority senator could interrupt the moment a senator starting a filibuster stopped talking. This could prove to be a strong limit for filibusters if senators who support the filibuster are not allowed to work with their colleagues – if the last one is too tired to continue talking, trade in for a new obstructive senator.
A third possibility was recently considered by Merkley. While Merkley’s 2012 proposal appears to allow tag teaming and therefore likely won’t do much to transform the Senate, Merkley’s new proposal could do a lot more.
When NBC News’ Sahil Kapur summed up this new proposal, “a group of 41 senators” would have to “keep the word and take turns talking” to maintain a filibuster. So the filibuster would end if the minority didn’t always keep at least 41 senators on the ground.
This reform could prove quite significant if it came into force. For one thing, the majority leader could potentially keep the Senate in session 24 hours a day, seven days a week, forcing Republicans to keep over 80 percent of their caucus on the floor at all times – including every Saturday morning at 3 a.m. and Christmas day . After all, the sheer physical strain of eating, sleeping, and most of their life in one room could be enough to end a filibuster.
It is an open question whether Manchin – or Senator Kyrsten Sinema (D-AZ), another Democrat who refused to eliminate the filibuster – would support such a change. However, Merkley’s new proposal suggests that senators hoping to get a solid legislative agenda through the Senate are thinking of smart ways to get the filibuster in some form without it creating a barrier to legislation.
And Biden’s recent remarks show that he has joined the growing democratic consensus in favor of reform.