The state of the filibuster, explained

Joe Manchin and Kyrsten Sinema sound resolute. But the drama over the 60-vote threshold hasn’t yet been played out.

Now that Democrats have gotten their first major victory with the $1.9 trillion pandemic relief law, the hard part for President Biden’s agenda begins. And the biggest question that will shape his legislative legacy remains: Is the filibuster here to stay?

To hear the pivotal Senate Democrat, Sen. Joe Manchin, tell it early last week, it is. Asked for the umpteenth time by reporters whether he might change his mind on the filibuster, he responded, “Never! Jesus Christ, what don’t you understand about ‘never’?”

If Manchin holds firm on that, it means Democrats’ ambitions for the rest of this Congress have to be sharply reined in. They can use the filibuster-proof budget reconciliation process again for certain issues. But several of the party’s priorities, from a minimum wage increase to voting rights and police reform, are likely ineligible for that special treatment. Accordingly, the only way to pass them would be to win over at least 10 Republican senators. And among many in the party, there’s deep skepticism that such cooperation would be in the offing.

Yet just days later, Manchin sounded a somewhat different tune. In a round of TV interviews this weekend, he said he could possibly support a rules change to make filibustering “a little bit more painful” — meaning, requiring filibusterers to actually stand up and speak. However, he also insisted he is “not willing to take away the involvement of the minority” altogether and that he was “going to continue to support the filibuster.” (Then, on Tuesday he shifted his emphasis yet again, suggesting too much was made of his comments from the weekend.)

So we don’t have a clear picture of what the future of the filibuster looks like just yet. Reformers like former Senate aide Adam Jentleson have argued for optimism. They’ve long said the true test for the Democratic moderates won’t come until they’re faced with the reality of Republican obstruction of Biden’s agenda — which they say will become apparent after several more months of frustration. Reformers also highlight every new reform-curious statement from any Senate Democrat, arguing that momentum is building.

But with only 50 Senate Democrats, every single one of them would be necessary to ram through a “nuclear option” rules change. So there’s no room for error. If Manchin — or Arizona Sen. Kyrsten Sinema or any other member of the caucus — remains unbendingly pro-filibuster, well, that’s the ballgame. And it’s not yet clear whether there is a real path forward for reform, or whether it’s headed to a dead end.

The current state of affairs

Though support among Senate Democrats for ending the filibuster has been growing in recent years, it’s clear they do not currently have 50 votes to do so.

What’s less clear is how far away they are from getting there.

Manchin and Sinema have been the most out front in their defense of the filibuster. In January, as Chuck Schumer and Mitch McConnell were squaring off over the Senate organizing resolution, both Manchin and Sinema affirmed that they would not vote to get rid of the filibuster during this Congress.

Sinema even wants to reverse previous nuclear option rules changes: “I want to restore the 60-vote threshold for all elements of the Senate’s work,” she told Politico’s Burgess Everett last month.

Ting Shen/Bloomberg via Getty Images

Democratic opposition to reform might not end with that pair, though. There’s a long history of even blue-state Senate Democrats waxing loquacious about how important the filibuster is, and the Washington Post’s Philip Bump has assembled a list of such comments.

Yet on Bump’s list, many of these comments were made before Democrats took the Senate. There aren’t any other hard nos from this year. Sen. Mark Kelly (D-AZ) said he supports “bipartisanship,” and Sen. Mark Warner (D-VA) said “it would take an awful, awful lot for me to end the filibuster” (so he’s saying there’s a chance).

Furthermore, besides Manchin there are two Democrats representing states Donald Trump won in 2020. One, Sen. Jon Tester (D-MT), said in January, “If all that happens is filibuster after filibuster, roadblock after roadblock, then my opinion may change.” The other, Sen. Sherrod Brown (D-OH), said last year that “we’ve got to eliminate the filibuster.”

Swing-state senators like Debbie Stabenow (D-MI), Tammy Baldwin (D-WI), Angus King (I-ME), and Bob Casey (D-PA) are also already on board with reform or have suggested that their position depends on just how obstructive Republicans turn out to be. Sen. Chris Coons (D-DE), another longtime filibuster defender and close ally of Biden’s, said last summer that he “will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn.”

However, it is possible that more senators are aligned with Manchin and Sinema privately, and have just been strategically quiet about it. Last week’s vote on including a $15-an-hour minimum wage in the stimulus revealed that eight Democrats opposed it. Most hadn’t made public statements about it ahead of time, not wanting to court outrage from the base, but the vote revealed their true position.

We should also note that there’s one more key player who isn’t yet on board: President Joe Biden. On Monday, White House press secretary Jen Psaki said in a briefing that “the president’s preference is not to get rid of the filibuster,” and that Biden believes there are “opportunities” to “work on a bipartisan basis.” Biden doesn’t get a vote on the Senate’s rules, but as the leader of the party, his opinion is of at least some relevance.

Overall, though, the hardest opposition really does seem to be coming from Manchin and Sinema. They are the ones who have most recently vowed to “never” abolish the filibuster, so they’re the ones who would have the toughest time explaining an about-face. If reformers can somehow manage to convince them to change the rules, it’s likely that would be sufficient to convince other Democratic senators as well.

Rules changes happen when Senate majorities feel sufficiently outraged at the minority party’s behavior

Theoretically, a Senate majority — even one composed of just 50 senators and Vice President Kamala Harris’s tiebreaking vote — can change the rules whenever it wants to.

Usually, though, they don’t want to. Most senators in the majority have been in the minority before and appreciate the chamber’s unique privileges, as compared to members of the House of Representatives minority, who really can’t do much at all. Changing the rules in this way is considered so distasteful that it has become known as using the nuclear option. (Senators somewhat melodramatically consider changing their hallowed rules to be essentially as horrific as setting off a nuclear bomb.)

The exception comes when members of the majority come to believe that the minority is abusing its power. When they are sufficiently appalled and outraged — or, viewed more cynically, when they’ve found some pretext — the votes to go nuclear can materialize quite suddenly.

• In 2005, the Republican Senate majority was outraged that Democrats were filibustering several of President George W. Bush’s circuit court nominees whom they believed to be qualified. They threatened to use the nuclear option, but a bipartisan gang of senators cut a deal to avert the rules change.
• In 2013, the Democratic Senate majority reached its limit with Republican blockades of several of President Barack Obama’s nominees. Republicans had gone beyond criticizing specific nominees and instead were trying not to confirm anyone Obama put up for the DC Circuit Court of Appeals, the National Labor Relations Board, or the Consumer Financial Protection Bureau. So Majority Leader Harry Reid’s Democrats went through with the nuclear option, allowing all nominees except for the Supreme Court to be advanced with a simple majority rather than 60 votes.
• In 2017, the Republican Senate majority decided it was out of bounds for Democrats to filibuster President Donald Trump’s Supreme Court nominee Neil Gorsuch, whom they believed to be qualified. So Majority Leader Mitch McConnell’s Republicans finished the job Reid started, letting Supreme Court nominations advance with a simple majority. Since then, the 60-vote requirement can only be used to block legislation, not nominations.

This history is why many don’t believe the saga of filibuster reform is over just yet. The question is whether a similar drama will unfold this year — one that will finally make Manchin, Sinema, and the rest outraged enough at Republican obstruction that they’d be willing to change the legislative filibuster.

The reform-optimistic take: The drama hasn’t yet been played out

So far this year, the Senate has been busy confirming Biden’s nominees and handling Trump’s impeachment trial. The only major bill the chamber has advanced has been the stimulus, which was filibuster-proof.

But eventually, the number of bills passed by the House and unable to advance in the Senate will start piling up. It’s already started, with the House passing a voting rights reform package, the George Floyd Justice in Policing Act, and a labor rights bill in recent weeks. Reformers believe those pivotal Democratic senators will grow increasingly frustrated at Republicans’ refusal to work productively on legislation.

Notably, former President Obama seemed to be anticipating a showdown between voting rights legislation and the filibuster last year. In remarks at Rep. John Lewis’s funeral in July 2020, Obama linked the two topics, saying, “If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”

Difficulties getting Republican votes to keep the government funded — or to raise the debt ceiling — are other possibilities where a showdown might happen.

But we’re not there yet. As a factual matter, Republicans haven’t actually blocked any legislation under President Biden just yet. So Manchin and others, including Biden himself, want to see if they will really do so. And that entails making a serious effort for bipartisanship first.

For the stimulus, Biden took a meeting with 10 Republican senators proposing a much smaller bill, but negotiations didn’t really progress beyond that. Manchin has made it clear that he won’t support replicating that process for what’s next. He told NBC’s Chuck Todd that the idea that “Republicans will never agree on anything” was “tribal,” and that he doesn’t “buy into that.” He doesn’t even want to use budget reconciliation again without first making a more sustained effort for bipartisanship — though he left open the possibility that he’d change his mind on that if Republicans prove intractable.

So that’s the next step — trying to win Republican votes for Biden’s next major bills. Activists feel certain that this effort will be doomed. But the moderates are demanding to see that for themselves. And if there’s any path toward getting them to agree to eliminate the filibuster, it’s convincing them that Republicans are abusing that tool in an outrageous way, and leaving them no other alternative but to go nuclear.

“I think we need some floor experience first,” Senate Majority Whip Dick Durbin (D-IL) told reporters Tuesday. “Bring some bills to the floor. Let’s see what happens.”

The reform-pessimistic take: The filibuster defenders sound staunch, and there are no votes to spare

The scenario for how reform doesn’t happen, though, is simpler: Manchin sticks to his guns, or Sinema sticks to hers. (Or any other quieter Democrat scuttles the plan.)

Though Manchin gets most of the attention, Sinema has actually staked out a more extreme position on the filibuster, with her view that the Senate should move back to requiring 60 votes for everything. That would seem to suggest she’d be quite tough to move, but her career trajectory of switching from a Green Party activist to a staunch moderate may also suggest she will follow where the political winds are blowing.

Stefani Reynolds/Bloomberg via Getty Images

Manchin, meanwhile, gave reformers some hope in the past week with his comments suggesting that he would be open to a more minor reform of the filibuster, to make it more “painful” for the minority party to use.

This idea, for a “talking filibuster,” has been batted around by certain reformers for some time. Essentially, they want to return to the older-style filibuster when senators trying to block a bill would have to actually be on the Senate floor making their case. The hope is that this would deter the minority from using the filibuster so routinely, and make it possible they could be overcome through sheer exhaustion.

But the devil is in the details with such a proposal. (It was Senate majorities who threw out the “talking” requirement, believing it wasted too much of the Senate’s time.) And in subsequent comments to Politico, Manchin suggested he’d keep the true obstacle for Democrats in place: the 60-vote threshold to advance legislation, to overcome the talking.

Yet another complication is that, in that Politico interview, Manchin referred to what he supported as either a 60-vote threshold to advance legislation or a 41-vote threshold to block the bill. Now, technically, the current requirement is for 60 votes to advance (meaning, theoretically even a 59-1 vote would block a bill). Some reformers have suggested changing the rules so that it instead takes 41 votes outright to block a bill (putting more of a burden on the minority to come up with the votes). But it’s unclear whether Manchin was nodding toward that rules reform proposal or just speaking inexactly about how bills get blocked under existing rules.

The fact that Manchin sounds open to at least some degree of rules change is of course better for reformers than nothing. But how much better will depend on the details of what he agrees to support. And Manchin has repeatedly said he wants to ensure the minority party still has a voice in legislating. In an interview with Mike Allen of Axios aired this weekend, Manchin said, “I would say this to my [Democratic] friends. You’ve got power and you want to use it, don’t abuse it. And that’s exactly what you’ll be doing if you throw the filibuster out.”

Meanwhile, as I wrote last month, the weird quirks of what types of issues can be addressed through budget reconciliation are convenient for Democratic moderates. They would prefer Congress’s focus to remain on the economy and broadly popular topics like infrastructure, which can advance under reconciliation rules, rather than moving on to other long-held Democratic ambitions such as immigration reform, which may be ineligible. That is: The current status quo tilts the party’s agenda toward their priorities.

Partisan pressure can be a powerful thing, and it will surely build if Manchin and Sinema’s resistance to a rules change becomes clearly identified as the biggest roadblock to Biden’s agenda. They may well eventually bend to that pressure. But when your majority is only 50 senators, you need to hold on to all of their votes to get anything done — meaning you can’t afford to alienate them.

And if the answer to “what will change Manchin and Sinema’s minds” turns out to be “nothing,” it’s not really clear what reformers can do about that.