The Senate that Biden grew up in — remember, he was 29 when he was elected — largely passed bills by a simple majority vote, including controversial bills. When the debate was over, even senators who opposed the underlying bill would vote yes on what’s known as “cloture,” which means closure of the debate. That began to change, first with Harry Reid, D-Nev., as Senate minority leader, determined to fight President George W. Bush, but went into overdrive under Senate Majority Leader Mitch McConnell, R-Ky. McConnell effectively raised the threshold any legislation needed to 60 votes in order to undermine President Barack Obama. (For more on the history, this Deconstructed episode from last month has you covered.)
“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,” Biden said. “You had to stand up and command the floor, you had to keep talking.”
“You’re for bringing back the talking filibuster?” Stephanopulos asked.
“I am. That’s what it was supposed to be,” Biden said. “It’s getting to the point where, you know, democracy is having a hard time functioning.”
Notice that Biden is using the credibility he owns as a Senate traditionalist — he was elected six years before I was even born, and I’m getting old — to make the case that reform is necessary to defend democracy and return the Senate to the working condition it was in when he got there. It’s no secret that Biden was far from progressives’ first choice to win the Democratic nomination, but he may possess a unique ability to disarm centrist and conservative Democrats who otherwise might oppose the same project or program if it was proposed by Sens. Bernie Sanders, I-Vt., Elizabeth Warren, D-Mass., or, really, anybody but Biden.
Sen. Ted Cruz, R-Texas, recently criticized Biden as “boring but radical.” While Cruz is never serious about anything, and Biden is far from a radical, there’s some truth, even if Cruz doesn’t recognize it, behind that point. A $1.9 trillion stimulus just scans among the public as more “reasonable” when coming from Biden than it would from a Democrat whom Republicans could more easily paint as a radical, a task that they managed to accomplish with Obama even though he governed as a centrist. There is a genuine only-Nixon-could-go-to-China element to Biden’s gentle evisceration of the filibuster.
Had Sanders or Warren suggested changes to the filibuster, you can be sure that West Virginia Sen. Joe Manchin, the self-styled exemplar of the moderate Democratic centrist, would be hearing none of it. Instead, in his interview Tuesday night, Biden was merely following Manchin, who has recently opened up to the idea of bringing back the “talking filibuster.”
How Biden Can Do It
So what would these new filibuster rules look like?
Nobody yet knows, but from conversations with Senate sources over the past few weeks, months, and years, I can take a few stabs. First of all, the 60-vote threshold for cloture has to go. The current rules put the onus on the majority to marshal 60 votes, which no majority is likely to have for the foreseeable future.
If Democrats do manage to reform the filibuster, you have to assume this much: They will not go through all that trouble simply to leave McConnell with a veto over their agenda. How they strip that veto remains to be seen, but the new rules would shift the onus from the majority, which today needs 60, to the minority, which today barely has to show up. As Manchin says, you have to extract a cost for the minority to obstruct, to make them actually be there on the floor. “Maybe it has to be more painful, maybe you have to make them stand there,” Manchin told Fox News earlier this month.
So if cloture can’t stay at 60, how do you get it to a place where a majority can reasonably reach it? One solution is to deploy the “present-and-voting” approach. The possible rule goes like this: If three-fifths of senators present and voting support cloture, then cloture is invoked, and the debate is over. Democrats who support the notion of 60 for cloture could think of three-fifths as a synonym. That would mean that if all 50 Democratic senators showed up at 3 a.m. to call the vote, Republicans would need, by my math, 34 senators ready to vote no. They can do that sometimes, but eventually Democrats — or any future majority — would wear them down and find a moment where enough of them are literally sleeping that they can move it across the floor.
Another approach could be to require 41 votes to sustain a filibuster at any time. Under the current rules, if a cloture vote gets 59 yes and zero no votes, the no votes still win. You could flip that to say that unless 41 senators insist that the talking continue, the debate is over. And again, if that vote is called at 3 a.m., there may not be 41 senators able to get there within the allotted time.
The present-and-voting standard has a long Senate tradition — longer, in fact, than the 60-vote threshold. In 1917, as the U.S. was gripped with war fever, a handful of anti-war senators filibustered their way into Senate adjournment, blocking a vote on a declaration of war against Germany, a story recounted by longtime Senate aide Adam Jentleson in his new book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.” Amid an uproar, the Senate implemented a cloture rule that allowed two-thirds of those present and voting to bring debate to an end. When the threshold was moved down to three-fifths in 1975, the present-and-voting standard was replaced by an affirmative need to hit 60. Biden and Manchin’s reform would return it to how it was when Biden entered the Senate.
by Ryan Grim, The Intercept | Read more:
Image: Kevin Dietsch/UPI/Bloomberg via Getty Images
