Senate Democrats and the Filibuster

Democratic Caucus on Filibuster Reform Tally

TOTALS: 8 9 13 0 1 0 0 0
SenatorCarve OutsTalking FilibusterRepeal the Filibuster AltogetherLower the Filibuster ThresholdChange debate rules/limit debate time.41 to BlockUndecided:
Leans Y/N
No Comment
Kyrsten Sinema (AZ)
Mark Kelly (AZ)
Dianne Feinstein (CA) X X
Alex Padilla (CA) X
Michael Bennet (CO)
John Hickenlooper (CO)
Richard Blumenthal (CT) X
Chris Murphy (CT)
Tom Carper (DE)
Chris Coons (DE)
Raphael Warnock (GA) X
Jon Ossoff (GA)
Brian Schatz (HI) X
Mazie Hirono (HI)
Dick Durbin (IL) X
Tammy Duckworth (IL) X X
Elizabeth Warren (MA) X
Ed Markey (MA) X
Ben Cardin (MD) X
Chris Van Hollen (MD) X
Angus King (I) (ME) X
Debbie Stabenow (MI)
Gary Peters (MI)
Amy Klobuchar (MN) X
Tina Smith (MN) X
Jon Tester (MT)
Jeanne Shaheen (NH) X
Maggie Hassan (NH)
Bob Menendez (NJ) X
Cory Booker (NJ)
Martin Heinrich (NM) X X
Ben Ray Lujan (NM)
Jacky Rosen (NV) X
Catherine Cortez Masto (NV)
Chuck Schumer (NY)
Kirsten Gillibrand (NY) X
Sherrod Brown (OH) X
Ron Wyden (OR) X
Jeff Merkley (OR) X
Bob Casey (PA)
Jack Reed (RI)
Sheldon Whitehouse (RI) X
Mark Warner (VA)
Tim Kaine (VA) X
Pat Leahy (VT)
Bernie Sanders (I) (VT) X
Patty Murray (WA) X
Maria Cantwell (WA)
Tammy Baldwin (WI) X
Joe Manchin (WV) X

The realities and limitations of math and majorities under the current rules of the United States Senate have become increasingly apparent in recent weeks. As a result, support has grown sharply — both inside and outside the Senate — for changes to enable passage of more than nominations and reconciliation bills. The House Democratic majority continues to pass enormously popular legislation:

  • HR 1, the For the People Act
  • HR 4, restoration of the Voting Rights Act
  • Increasing the Minimum Wage

The culprit, ironically, is the most frequently used means of restricting the voting rights of Senators themselves: Rule 22. For years, the invocation of Rule 22 has dead-ended legislation. It has risen to standard operating procedure in the Senate and reduced the odds of a bill getting a vote by more than 50 percent since 1975. 

Procedural reform to enable the passage of must-pass items (wartime emergency; economic, health, environmental crisis responses; democratic security; the debt limit, etc.) does not require repeal of Rule 22, otherwise known as the filibuster.

For explanations of the Senate filibuster reform types, scroll to the appendix, here.

State of Play

Passage of further Democratic legislative priorities — with the exception of policies that can be used in upcoming reconciliation packages — will likely require procedural reform given GOP intransigence. Reform must be viewed in terms of actually guaranteeing majority rule in the Senate rather than simply making filibustering more difficult for the minority. Options like the talking filibuster will not ensure passage of important priority bills like HR 1. Ultimately, procedural reform is the only way to ensure that members of the Senate, particularly the majority, cannot be blocked by a minority of senators from voting on the most important issues of the day.

Appendix

Direct Reforms (by support in caucus)
These proposals would tangibly increase the majority’s legislative power, reduce minority obstructionism, and reform Senate procedure in a meaningful way. 

  1. Votes required for cloture: Lowering the required vote for cloture from 60 to a simple majority would technically leave the filibuster in place, as a bipartisan group of senators could still vote down cloture in a majority vote. As long as the supermajority requirement remains in place, the possibility of any productivity in the Senate remains low. Other related reform ideas include:
  • Exemptions/carve outs: Removing the filibuster for certain types of legislation could be done for emergency legislation (such as related to war or economic crises) and must-pass bills such as appropriations, democracy legislation, or voting rights legislation.
  • Incremental cloture: Lowering the cloture vote threshold by some number with each passing week of debate would make it more difficult for the minority to take advantage of the supermajority requirement. 
  • Majority UCA: Requiring only the majority caucus to reach unanimous consent would prevent Mitch McConnell from weaponizing routine use of UCAs to bog down the Senate and would give extra leverage to moderate Democratic senators.
  1. Debate rules: The filibuster itself is not technically a part of the Senate rules, but is a practical consequence  of a lack of Senate rules governing the structure of debate. In order to eliminate or reform the filibuster, the Senate could adopt new rules limiting the hours of debate or setting up a mechanism in which the majority controls the length of debate (similar to the House Rules Committee). This would not be unprecedented, as the Senate already has limited debate for certain types of legislation like reconciliation and fast-track trade authority.
  2. Total repeal: The most substantial reform to rule 22 that would eliminate the filibuster on all legislative matters. Any undivided majority party would require only 50 votes for passage for any piece of legislation, squandering minority power. 

Indirect Reforms (by support in caucus)
Some proposals would make it more painful for minority Senators to block legislation, but would not prevent the minority from obstructing bill passage as they see fit. 

  1. Talking filibuster: The talking filibuster has gotten a lot of attention in the last couple of weeks, particularly since Biden expressed his support for it in an interview. The problem is that people tend to view this in a romanticized light ala Mr. Smith Goes to Washington, and not through a realistic lens of what this does to the Senate. While a talking filibuster would certainly impose a higher cost on the minority and prevent senators from literally phoning in a filibuster, it could completely block all Senate business if the minority stays organized and is willing to hold out. 
  • Present-and-voting standard: Like the talking filibuster, requiring the physical floor presence of 41 senators to prevent cloture would impose a higher cost on the minority. But it would likewise keep the supermajority requirement intact and would not come close to making a filibuster impossible.
  • Limiting debate on motions to proceed: Currently, unlimited debate is allowed on MTPs, meaning that cloture is needed to both move a bill to the floor and to put it up for a final vote. Eliminating the filibuster for MTPs would help the Senate move more smoothly but would keep the main filibuster completely intact.