Update 533 — Senate Democrats Poised
To Debate, Decide Meaning of Majority Rule
Americans are about to be treated to an extended debate about the recondite rules of the U.S. Senate. Arcane and archaic, Senate procedure requires supermajorities for passage of veto overrides, treaties and impeachment — as provided by the Constitution. But the Senate has a rule of its own requiring supermajorities for procedural votes — not mentioned or mandated by the Constitution.
This little-understood rule, Senate Rule 22, has so paralyzed the Senate that general order — majority rule — is all but gone. Unless it’s a budget resolution, a fast-track trade bill, CRA resolution, or a District or Court of Appeals judicial confirmation vote, even a bill supported by an overwhelming majority of Americans canbe buried with impunity.
Today, we provide a state of play as to the strategic considerations and timing of the Senate’s rendezvous with Rule 22.
As we send this, Senate Majority Leader Schumer is meeting with his caucus to discuss the path ahead for the filibuster, voting rights legislation, and all other legislation relevant to procedural reform. Democrats will need to reform or eliminate Rule 22 if they hope to enact their legislative priorities this Congress, particularly those unable to pass through budget reconciliation or regular order.
Schumer promised floor consideration of the For the People Act (S. 1) by August, a deadline that will soon nudge Democrats to take action on the filibuster. Below, we detail the state of play on reform and outline a probable strategy and direction moving forward.
Where the Filibuster Debate Stands
A majority of Senators support reform measures, as indicated by the 20/20 Vision Senate Democrats tracker. Most Democratic members of the Senate Rules Committee are open to reform, and Rules Chair Klobuchar supports weakening the filibuster in order to advance voting rights legislation. A consensus is forming among Democrats that bypassing outdated and draconian procedural norms is necessary to pass bold and popular legislation.
Democrats will be considering public perception of filibuster reform itself. Recent polls suggest that voters are under-informed about the filibuster. But they are more likely to support reform when given more information about the filibuster and its obstructive role. One recent poll indicates that Americans are split roughly into thirds as to whether they support, oppose, or have no opinions on filibuster reform. Other polling shows a more favorable outlook on reform, with only 30 percent of Americans favoring the filibuster’s political status quo.
Schumer must get all 50 Senate Democrats behind some version of filibuster reform. Sens. Manchin and Sinema have released public statements indicating hesitation or opposition to changing the filibuster, citing concerns of partisanship and ensuring minority-party rights. But as more Democratic senators make direct calls for reform, the spotlight will only shine brighter on those unwilling to find a solution.
The Graveyard Strategy
No bills have been filibustered in the Senate so far this year. The American Rescue Plan passed through reconciliation, and President Biden’s executive and judicial nominees are exempt from the filibuster. In recent weeks, Schumer has prioritized legislation with bipartisan support, including the COVID-19 Hate Crimes Act and the Endless Frontiers Act.
Regular order and bipartisanship in the Senate are welcome, but to build momentum for filibuster reform, Schumer must make a clear case to senators and the public regarding the stakes of inaction. Democrats will build up a “graveyard” of bills obstructed by Republican filibusters, continually raising the stakes and demonstrating to reluctant senators why reform is needed.
The House has already passed and sent several pieces of important legislation to the Senate. Sen. Schumer has already filed for cloture on the bill establishing a bipartisan Jan 6 Commission, which Republicans are expected to filibuster. Other House-passed items include:
- Political reform (the For The People and John Lewis Acts)
- Labor reform (the PRO Act)
- Gun control
- Police reform (the George Floyd Act)
- Immigration reform
All of these bills will likely face Republican filibusters. But carving out majoritarian exceptions to the filibuster rule has been a common practice in the Senate’s history. Molly Reynolds of the Brookings Institution found 161 provisions adopted between 1969-2014 that prevent certain kinds of legislation from being filibustered in a range of policy areas such as budget reconciliation, trade authority, closing military bases, and review of regulations.
These reforms did not occur in a vacuum — many resulted from built-up pressure and senators’ frustration with the filibuster-aided obstructionism. Precedent exists for creating majoritarian exceptions as a means of ending obstruction. Harry Reid’s decision in 2013 to exempt most judicial and executive nominations from the filibuster came after the Senate GOP blocked hundreds of President Obama’s appointments, many noncontroversial. Over time, McConnell’s filibusters led many once-skeptical senators to support a carveout for nominations.
A similar process can take place now. As McConnell’s graveyard grows, senators will see clearly that passage of these essential bills requires procedural reform. Democrats may even decide to pursue reform measures incrementally, opting for less aggressive mechanisms earlier this Congress while gradually pushing toward reforms that scrap the 60-vote threshold to pass bills. This strategy would test the caucus’ temperature with each additional filibustered bill, allowing more windows of opportunity for reform.
Mechanisms of Reform
While building this graveyard of filibustered legislation, there may inevitably be a single bill Democrats single out as the straw that breaks the camel’s back — one that will be the first to circumvent the current 60-vote threshold for passage in the Senate. Sen. Schumer has said that as voting rights remain under attack in state legislatures, national voting legislation like S. 1 “cannot fail.”
Given the bill’s public support and the urgency of ensuring voting rights, Democrats may pursue a ‘democracy carve out’ that would omit the 60-vote threshold for S. 1 or H.R. 4.
Any meaningful filibuster reform needs to address one or more of these questions: how much to limit debate time, how much to lower the supermajority requirement, and to which bills would the new rule apply, i.e., what bills would be carved out of the requirement.
The carve-out, as well as other effective reform mechanisms are detailed below:
- 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.
- Changing Votes Required for Cloture: Lowering the threshold for cloture from 60 to a simple majority (or somewhere in between) would technically leave the filibuster in place, but a bipartisan group of senators could still vote for cloture in a majority vote. Other related reform ideas include:
- Majority Unanimous Consent Agreement (UCA): Without reaching unanimous consent (or in the absence of cloture), bills can be debated, and non-germane amendments can be offered without end. This requires only the unanimity of the majority caucus to reach a UCA, which would prevent Mitch McConnell from weaponizing UCAs to bog down the Senate. This would preserve extra leverage to moderate Democratic senators.
- 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 indefinitely.
- Changing Debate Rules: In order to eliminate or reform the filibuster, the Senate could adopt new rules limiting the hours of debate or set up a mechanism in which the majority controls the length of debate.
More incremental approaches to reform include a talking filibuster or present-and-voting standard. The talking filibuster imposes a higher cost on the minority by preventing senators from phoning in a filibuster, but it would not allow for the majority to bring an end to debate. Similar to the talking filibuster, the present-and-voting standard requires the physical floor presence of 41 senators to prevent cloture, which 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.
Regardless of which avenue Democrats choose to pursue, 50 votes will be necessary for any filibuster reform. Moderate Democratic holdouts may well be forced to decide between passing important laws or clinging to futile hopes of bipartisanship.
No doubt word will issue and be reported on the Senate Democratic caucus’ discussion and decisions regarding the forgoing in a matter of hours and days, with implications for the weeks, months, maybe even years to come.