Senate Process SOP

Update 521 — Senate Process SOP:
Real Reforms and Honorable Manchins

Over time, policymakers in Washington have used the term “bipartisan” to describe bills. But the true meaning of the word has been clouded by the way Washington uses it and how folks elsewhere still understand it. Which bills it applies to — how it is defined case-by-case — is in the eye of millions of beholders besides Sen. Mitch McConnell.

In a recent poll, Senate battleground-state voters, including West Virginians, overwhelmingly supported H.R. 1/S. 1, the For the People Act. In fact, 74 percent of Republicans supported it. Two-thirds are more likely to vote for a candidate who supports it. In 2020, Trump won West Virginia and many of the other states by wide margins. The data indicates that little is seen popularly as more bipartisan than reforms enabling passage of big-ticket legislation today. 

Accordingly, we review the Senate parliamentarian’s reconciliation ruling this week and procedural alternatives to “regular order” in the Senate currently under discussion. 

For more detailed information on where individual Democratic Senators stand on the different paths for filibuster reform, click here.




This week, U.S. Senate Parliamentarian Elizabeth MacDonough issued a ruling allowing Democrats to amend the budget resolution used for the American Rescue Plan (ARP) with 50 votes. Senate Majority Leader Chuck Schumer said Monday that “no decisions have been made on a legislative path forward,” as some parameters still need to be worked out. But regardless, this ruling expands Democrats’ legislative opportunities and has significant ramifications for filibuster reform. 

Implications of Multiple Reconciliations 

Before the parliamentarian’s decision, it was unclear whether Democrats could pass more than one bill this year through the filibuster-proof reconciliation process, in addition to the American Rescue Plan (ARP) enacted last month. Her decision makes clear they can use reconciliation at least twice more in 2021.

A provision of the 1974 Budget Act (section 304) allows Congress to revise a budget resolution it has already approved. Until now, it was unclear whether a revised budget resolution could set the stage for a reconciliation bill. The parliamentarian has now said that it can. Democrats can pass their ambitious $2 trillion infrastructure and jobs package (The American Jobs Plan) as long as the contents are strictly related to spending and taxes. This ruling may allow Democrats to pass Biden’s proposed infrastructure legislation (and potentially more) without Republican votes or reforming the filibuster. 

In addition to his recently announced infrastructure package, Biden is expected to announce a second package focusing on “human infrastructure” like child care and health care. Both packages may be merged into one budget bill that amends the 2021 budget resolution, but Democrats could also separate them. This route involves passing the first infrastructure package by amending the 2021 resolution and passing the second package in the 2022 resolution. 

Reconciliation has its limits, so Democrats are considering ways around the filibuster in order to pass priorities like H.R. 1/S. 1. The parliamentarian’s ruling doesn’t change the scope but the frequency of ways to get Byrd-compliant 50-vote minimum bills passed. 

Hesitation among Senate Democrats remains a considerable hurdle to filibuster reform, but sentiments are changing. Once considered an opponent of reform, Sen. Feinstein has now expressed interest in both a talking filibuster and a democracy carve-out, as have many of her Senate colleagues. In the meantime, the parliamentarian’s decision provides Democrats a path to pass key pieces of Biden’s agenda through reconciliation.

A Filibuster Too Far

Democrats keen on reform appear to be coalescing around a talking filibuster or carve-outs, but the caucus remains divided. Several Senators continue to advocate for all-out elimination while others remain skeptical of reform. Below we evaluate reform options as well as other proposals under consideration. 

Effective Reforms:

  • Changing Votes Required for Cloture: Lowering the required vote 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:
  1. Unanimous Consent Agreement (UCA): This reform requires only the majority caucus to reach unanimous consent, preventing Mitch McConnell from weaponizing UCAs to bog down the Senate. This would give extra leverage to moderate Democratic senators.
  2. 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.
  • 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. Note that reconciliation itself is a fiscal policy carve-out all Senate Democrats supported in the ARP. 
  • Changing Debate Rules: The filibuster is not hard-written into the Senate 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 (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. 

Filibuster reform advocates and Senate Democrats alike have been vocal about a “democracy carve out,” scrapping the filibuster for voting rights legislation. Schumer has made it clear that ‘everything is on the table’ when it comes to getting voting rights passed and has indicated he intends to bring voting rights bills to the floor. Whether he starts with S. 1 (the For the People Act), H.R. 4 (the John Lewis Voting Rights Act), or other legislation, Schumer will want to test the waters of bipartisan support and build a mandate against GOP obstruction. 

Given the parliamentarian’s ruling, moderates in the Democratic caucus may have more flexibility to oppose filibuster reform if more of Biden’s jobs plan can get through the Senate without it. But as more states continue to pass contentious bills suppressing the right to vote, the pressure to pass democracy reform legislation will grow. If Schumer can take advantage of a national movement for voting rights, the Democratic caucus may be able to produce 50 votes for a carve-out standardizing voting rights for all Americans. 

Number of bills restricting voting access introduced in the 2021 legislative session

Source: Brennan Center

Reforms to Little Effect:

  • Talking Filibuster: 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.
  • Present-and-Voting Standard: Similar to the talking filibuster, this reform 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. 

Schumer’s Strategy 

Sen. Schumer will spend the next months weighing his options for reforming the filibuster. All the while, his caucus will seek consensus. As Leader Schumer watches a growing proverbial ‘graveyard’ of Republican obstructed legislation, momentum for reform as bill after bill dies might grow correspondingly. 

By moving bills to the floor and forcing Republican senators to vote down hugely popular and critical legislation, Schumer can help Democrats’ will become tactics and strategy. 

How far Sen. Manchin and other holdouts are willing to go and for what is the next-order problem to be addressed when presented. Until then, even op-eds are about principles but also hypotheticals. 

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