So far, President Joe Biden has been a disappointment.
Six months into his presidency, with Democratic control of the House and Senate, he has failed on a number of promises. But we have a bone to pick with him over the filibuster, in particular.
A single Senate procedure — which is not original to first Senate, mind you — has stopped dozens of pieces of legislation in their tracks. At this point, the filibuster isn’t about preventing majority rule — it’s about preserving minority obstruction.
The Senate is supposedly the “deliberative” body, but the filibuster threshold of 60 votes has kept bills from coming to a vote and prevented popular legislation from even being discussed on the Senate floor. It’s what killed the For the People Act and imperils the John Lewis Voting Rights Advancement Act to restore the full Voting Rights Act of 1965.
As recently as July 21, Biden was still defending the filibuster at a town hall: “There’s no reason to protect [the filibuster] other than you’re going to throw the entire Congress into chaos and nothing will get done. Nothing at all will get done.”
Biden’s refusal to even touch the filibuster is infuriating. Is the preservation of a procedural rule more important than preventing unjust outcomes? (And yes, we are talking about HR 1.)
Even though most pundits will say reforming the filibuster is all or nothing — leaving it exactly as is or going with the “nuclear” option — there are ways to alter it without doing away with it completely.
Once upon a time, senators actually had to stand on the Senate floor and talk in order to prevent a cloture (bringing debate on a bill to an end so the Senate can move on to the next step). In the mid-1970s, the Senate changed the filibuster: Instead of holding up all Senate business to the point of drawing public attention — and therefore pressure — bills facing a filibuster could die silently in the background as other business continued, according to the Brenan Center.
The Brookings Institution explains the so-called nuclear option “leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated.” It continues, “by following the right steps in a particular parliamentary circumstance, a simple majority of senators can establish a new interpretation of a Senate rule.” Senate Democrats did this in 2013 to make executive and judicial (but not Supreme Court) nominations a simple majority vote, and Senate Republicans did it in 2017 to include Supreme Court nominations.
Other options include appointing a parliamentarian who’s not just a stickler for the Byrd rule, which holds bills being passed by reconciliation (which only needs a simple majority) to strictly budgetary matters, or “a ‘mini-nuke’ that bans filibusters on particular motions but otherwise leaves the 60-vote rule intact,” according to Brookings, “for example, a Senate majority could prevent senators from filibustering the motion used to call up a bill to start … .” That would at least allow debate to begin, which is the bare minimum we need from the Senate right now. At the moment, the filibuster is blocking important federal voting rights legislation while states are passing voter suppression bills left and right.
Biden has given luke-warm support to reinstating the talking filibuster, but he’s not doing any of the legwork to make reform — of any kind — happen. Sens. Joe Manchin and Kyrsten Sinema (D-Ariz.) are the only barrier, and Biden has done nothing to convince them to soften their stances.
Senate Minority Leader Mitch McConnell (R-Ky.) and his cohorts will use the filibuster relentlessly, if for no other purpose than to make Biden look like a washout. And if Biden doesn’t do something to get legislation moving, he will be.
Then again, if Biden preserves the filibuster, he can always blame his failure on minority obstruction instead of owning up to his own disappointing presidential performance.
