Joe Manchin’s filibuster demands might end up making Republican obstruction even worse

There's a very good reason Republican lawmakers “aren’t sweating a potential ‘talking filibuster’ reform”

By Igor Derysh

Senior News Editor

Published March 20, 2021 7:00AM (EDT)

Sen. Joe Manchin, (D-WV), chairman of the Senate Committee on Energy and Natural Resources, gives opening remarks at the confirmation hearing for Rep. Debra Haaland, (D-NM) President Joe Biden's nominee for Secretary of the Interior, during her confirmation hearing before the Senate Committee on Energy and Natural Resources, at the U.S. Capitol on February 24, 2021 in Washington, DC. Rep. Haaland's opposition to fracking and early endorsement of the Green New Deal has made her one of President Biden's more controversial cabinet nominees. (Leigh Vogel-Pool/Getty Images)
Sen. Joe Manchin, (D-WV), chairman of the Senate Committee on Energy and Natural Resources, gives opening remarks at the confirmation hearing for Rep. Debra Haaland, (D-NM) President Joe Biden's nominee for Secretary of the Interior, during her confirmation hearing before the Senate Committee on Energy and Natural Resources, at the U.S. Capitol on February 24, 2021 in Washington, DC. Rep. Haaland's opposition to fracking and early endorsement of the Green New Deal has made her one of President Biden's more controversial cabinet nominees. (Leigh Vogel-Pool/Getty Images)

Senate Democrats are pushing to reform the filibuster in response to years of partisan gridlock — but Republicans don't seem overly concerned about the prospect after centrist Sen. Joe Manchin, D-W.Va., ruled out key changes that could help advance President Joe Biden's agenda.

Biden for the first time this week supported bringing back a "talking filibuster," which would require senators to continuously speak on the Senate floor to block a vote on a bill. Under current rules, Democrats face a seemingly insurmountable 60-vote threshold in their efforts to pass voting protections and other measures they've long campaigned on.

"I don't think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days. You had to stand up and command the floor, you had to keep talking," Biden told ABC News, adding that Senate obstruction is getting to the point where "democracy is having a hard time functioning."

Sen. Lindsey Graham, R-S.C., the top Republican on the Senate Budget Committee, scoffed at the idea. Graham, who succeeded segregationist Strom Thurmond — best known for his record 24-hour filibuster of the Civil Rights Act — vowed that a return to the "talking filibuster" would not prevent Republicans from blocking bills like the Senate counterpart to H.R. 1, a sweeping election reform package that includes provisions to expand voting rights and codify voter protections, and the Equality Act, which would extend civil rights protections to the LGBTQ+ community.

"I would talk till I fell over to make sure we don't go to ballot harvesting and voting by mail without ID," Graham declared during an interview with Fox News' Sean Hannity on Wednesday. "I would talk till I fell over to make sure that the Equality Act doesn't become law, destroying the difference between a man and woman in our law."

A growing number of Democrats have called for the outright elimination of the filibuster, with former President Barack Obama calling it a "Jim Crow relic." Progressives have long argued that the 60-vote threshold to invoke cloture and end debate will prevent Congress from passing key legislative priorities, including a federal minimum wage increase. But the issue has taken on additional importance as Democrats attempt to pass two major voting rights bills.

Manchin and fellow centrist Sen. Kyrsten Sinema, D-Ariz., vowed earlier this year that they would oppose any efforts to eliminate the filibuster. But Manchin softened his stance earlier this month, telling NBC News that he would be open to making the filibuster "a little bit more painful" by making senators "stand there and talk."

Manchin's comments sparked optimism among reformers, but political reporters questioned whether a "talking filibuster" would actually help Democrats push through their agenda.

"How does a 'talking filibuster' help anything?" tweeted longtime Capitol Hill reporter John Bresnahan, the co-founder of Punchbowl News. "Depending on how it's structured — the critical question, as with anything Senate-related — a small group of senators could talk for days or even weeks. How does that get reformers any closer? It doesn't."

Politico White House reporter Alex Thompson noted that this is exactly why some Senate Republicans "aren't sweating a potential 'talking filibuster' reform."

There are a number of ways a "talking filibuster" could work in practice and it's unclear which path Senate Democrats will choose. Sen. Jeff Merkley, D-Ore., who has led the fight to reform the filibuster for over a decade, introduced legislation in 2011 that would require senators to actually hold the floor by talking, as in Frank Capra's famous film "Mr. Smith Goes to Washington," rather than simply threatening to do so. More recently, he has proposed requiring 41 opposing senators to remain on the floor to sustain a filibuster rather than putting the onus on the majority party to break the filibuster. Others have proposed lowering the threshold to break a filibuster, the same way the Senate lowered it from 67 to the current 60.

But Manchin shot down any lower thresholds or 41-senator requirements on Wednesday, telling CNN that he still supports requiring 60 votes to end debate.

Without additional measures in place, filibuster reform could actually result in even more delays and obstruction, at least in the short term, said Molly Reynolds, a senior fellow in governance studies at the Brookings Institution.

"When you are the majority party, you have lots of things that you want to try to do in the Senate," Reynolds, the author of "Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate," said in an interview with Salon. If Democrats allow a committed minority to hold the floor, "that means that there's other things that you're not doing. You're sucking up Senate floor time at the expense of things that you have to set aside."

This gives Republicans even more reason to stage filibusters, since that could derail not just the bill they are opposing but subsequent legislation as well.

"If you're the Republicans, and the Democrats try to do this, you have a really big incentive as the minority party to try and push that first use of the talking filibuster as far as you can," Reynolds said. "Whatever that first issue is, Republicans have a huge incentive to really dig in and demonstrate that it's not feasible."

Even if Democrats agree to Merkley's proposal to require 41 senators on the floor to sustain a filibuster, it's not clear that would "actually prevent [Republicans] from successful obstruction," Reynolds added. "If the majority party has enough things that it wants to do, or enough competing priorities, it's not willing to give over the Senate forever to the minority to hold the floor and talk and talk and talk."

Adam Jentleson, executive director of the progressive strategy firm Battle Born Collective and former chief of staff to longtime Senate Majority Leader Harry Reid, agreed that restoring the talking filibuster "could definitely lead to more grandstanding" but said he was not sure whether grandstanding is "better or worse than no debate at all."

The system in place today allowing senators to derail legislation with just the threat of a filibuster was created in the 1970s in order to stop filibuster delays and allow the Senate to get on with its workload.

"You might have a return to a system where a single filibuster backs up every other piece of business," Jentleson said in an interview with Salon. "That could have a flip effect — to increase the amount of pressure on the people filibustering to stop. If they're going to filibuster until the government shuts down, if they're going to filibuster until funding for critical programs runs out … that's going to increase the amount of pressure on the filibuster to yield."

Graham may be happy to filibuster voting rights until he falls over, Jentleson continued, "but is he going to be happy to filibuster voting rights if that also prevents military appropriations from being renewed?"

Jentleson, the author of "Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy," said there are an "infinite number" of ways to restore the talking filibuster, but that the "important thing to keep in mind is the question of: Is there any mechanism to bring the talking to an end after it's reached a certain point? And how often will it be used?"

When the talking filibuster was used by Southern senators during the Jim Crow era, "it was very effective because Southerners used it as a bloc," he explained. While there are famous examples of individual senators staging marathon talking sessions, these at best delayed legislation by about a day. "What makes it really effective is when a group of senators coordinate with each other to keep it going in perpetuity," he said.

But Southern senators primarily deployed the filibuster against civil rights bills, meaning it wasn't used often, Jentleson added. Things could be quite different in the hyper-partisan atmosphere of Washington in the 2020s.

"Presumably Republicans would be using this against everything, or at least all of Democrats' major priorities. You could see them using it against infrastructure or the Equality Act, voting rights, the Dream Act, any number of things," he said. "So it is a big unknown whether you can sustain a talking filibuster indefinitely, all the time. It's one thing to do it against one single bill, one time per session or once every few years. It will be quite another to have to sustain this basically all the time."

Jentleson argued that Manchin's opposition to certain measures should be taken with a "grain of salt," given that he's already shifted on the issue.

"My boss, Sen. Reid, swore up and down that he was never going to go nuclear and then he did," he said.

Reid has since called for the outright elimination of the filibuster, which was created by accident in 1806 and wasn't widely used until the Civil War era. Jentleson was referring to Reid's 2013 decision to use the "nuclear option" to eliminate the 60-vote threshold on executive branch and non-Supreme Court judicial nominees. Senate Republican Leader Mitch McConnell, R-Ky., did the same thing in 2017 to speed up Donald Trump's Supreme Court appointments, and in 2019 limited debate time from 30 hours to two hours to further speed up Trump's lower court nominees. An analysis by Reynolds found that Senate rules have been changed to limit the use of the filibuster more than 150 times.

"What we've generally seen is a slow chipping away at the filibuster," Reynolds said. That suggests that whatever Democrats do next is not likely to be the final step.

"If Democrats implement this reform and it doesn't work well enough, they can always do more," Jentleson said. "There's no expiration date on your ability to pass further reforms." In fact, once "you've made that initial reform, you're heavily invested in actually getting to a place where it works."

There are several other reforms that can help Democrats advance important legislation. Newly-elected Sen. Raphael Warnock, D-Ga., has proposed exempting voting rights bills from the filibuster, though Manchin quickly shot down that idea. Another potential reform, not directly related to the filibuster is the elimination of the Byrd Rule, which bans certain non-budgetary measures from being included in the reconciliation process and effectively killed the federal minimum wage increase in Biden's initial pandemic relief proposal.

Manchin and Sinema have rejected the idea of scrapping the Byrd rule, and they are not the only centrist Democrats standing in the way of more effective reform. Sens. Jon Tester, D-Mont., John Hickenlooper, D-Colo., Jeanne Shaheen, D-N.H., and Angus King, I-Maine, have also opposed or expressed reluctance toward scrapping the 60-vote threshold.

McConnell further tried to stoke concerns about the filibuster last Tuesday, threatening a "scorched earth Senate" if Democrats move forward with filibuster reform and warning that "even the most basic aspects of our colleagues' agenda, the most mundane task of the Biden presidency, would actually be harder not easier." He has previously threatened to ram through numerous Republican priorities with a simple majority if his party regains control of the Senate.

"That's something that we have to take very seriously, but you can't let the threat of possible future bad stuff prevent you from doing good stuff when you have the power to do it," Jentleson said. "By any measure, Democrats will come out well ahead, because we are the party that wants to enact progressive change and Republicans are the party that wants to stop stuff. We simply have more things that we can get passed in the next two years that will move the ball down the field and provide us a lot of insurance against the bad things Republicans might possibly do in the future."

Reynolds agreed that there is "increasing asymmetry between the share of the Democratic agenda that can get done with the filibuster, versus the share of the Republican agenda that can get done with the filibuster in place.

"One of the things we saw during the Trump administration is that Republicans in the Senate had two top priorities: confirming federal judges and passing tax cuts," she said. "They could do both of those things without the threat of a filibuster."

Democrats were able to include many of their priorities in the budget reconciliation used to pass the $1.9 trillion American Rescue Plan, but ran into limitations on the process when it came to the minimum wage and other matters.

"You can do a lot of things through reconciliation but you can't do everything," Reynolds said. "There are things that are really important to Democrats that they can't get done with the filibuster in place."

That imbalance could build support among Democrats to eliminate the filibuster entirely, if Republican obstruction on a particular issue gets to a "where the votes are there" but the majority party faces "a more sustained period of frustration," she added. "If there's something that Democrats are really committed to trying to get done, and are unified around getting that thing done and have felt sufficiently frustrated by Republicans, those are the stars that need to align in order to get a majority to change the way the Senate works."

That issue could well turn out to be voting rights, as Democrats push to pass H.R. 1 and the John Lewis Voting Rights Advancement Act, which among other things would reinstate the provision of the Voting Rights Act that required states with a history of racial discrimination to pre-clear any electoral changes with the Justice Department.

It was the urgency of that issue that apparently prompted Obama's change of heart on the filibuster. "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," he said while paying tribute to late civil rights icon Rep. John Lewis, D-Ga.

Reynolds said the issue makes the elimination of the filibuster "more likely now than I thought it was two years ago." The issue has only grown in importance against the backdrop of hundreds of proposed voting restrictions introduced by Republicans in more than 40 states in response unfounded fears of voter fraud stoked by Trump's lies about the 2020 election.

House Majority Whip Jim Clyburn, D-S.C., vowed that opposition from centrist Democrats would not prevent Congress from passing critical voting rights protections amid a wave of Republican restrictions that disproportionately target Black voters.

"There's no way under the sun that in 2021 that we are going to allow the filibuster to be used to deny voting rights. That just ain't gonna happen. That would be catastrophic," he told The Guardian. "If Manchin and Sinema enjoy being in the majority, they had better figure out a way to get around the filibuster when it comes to voting and civil rights."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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