For the second time since he became president with a 50-50 Democratic majority in the Senate, President Joe Biden is expressing a willingness to support altering a centuries-old Senate rule that Republicans — along with moderate Democratic Senators Joe Manchin and Krysten Sinema — have been using to stymie his legislative programme.
While speaking to reporters at a press conference following the 2022 Nato leaders summit in Madrid, Mr Biden assailed the US Supreme Court’s recent ruling which upended a half-century of precedent by giving states the power to force women to carry unwanted pregnancies to term against their will.
He said the court’s recent decision in the case of Dobbs v Jackson Women’s Health Organization was an “outrageous” one and said the only way to reverse it is to change Senate rules.
“I believe we have to codify Roe v Wade in the law, and the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way — it's like voting rights, it should ... provide an exception ... to the filibuster for this action to deal with the Supreme Court decision,” he said.
Mr Biden’s announcement comes eight months after he told CNN’s Anderson Cooper that he would changes to Senate rules governing the filibuster — a parliamentary practice which, in theory, allows for unlimited debate on legislation — to require only a simple majority of senators’ votes to pass voting rights legislation.
Because 60 senators’ votes are needed to end debate and allow a vote on a given bill, Republicans have in recent years weaponised the practice to prevent nearly all legislation supported by Democrats from being put to an up-or-down vote on the Senate floor.
The president, who represented Delaware in the upper chamber for more than three decades, initially told Cooper that he would support a return to the rules as they existed before 1970, which required all Senate business to stop while a filibustering senator held the floor and spoke for as long as he or she – or their colleagues – could stand. He also suggested that senators carve out an exception to prevent filibusters from blocking specific types of legislation, such as bills to increase the federal debt ceiling.
What would a return to the ‘talking filibuster’ mean?
Under the pre-1970 rules, a filibustering senator could block a bill from passing by prolonging debate endlessly. This mean that as long as the senator or their colleagues could stand and speak, they could gum up the works of legislation by talking, and talking, and talking.
It’s a tactic that was immortalised in Frank Capra’s 1939 film Mr Smith Goes to Washington when the title character played by Jimmy Stewart speaks for 25 hours to defend himself against false allegations of graft.
But while Mr Stewart’s fictional senator Jefferson Smith used the filibuster for good, perhaps its most infamous use was in service of the de jure system of racial segregation that permeated the American south for most of the 20th century, when South Carolina Senator Strom Thurmond held the Senate floor from 8.54pm on 28 August 1957 to 9.12pm the next day to block passage of the 1957 Civil Rights Act.
Mr Thurmond, who ultimately failed to block the bill, also joined with his southern colleagues to attempt to stop passage of the 1964 Civil Rights Act. Together, they held the floor for 60 days until then-President Lyndon Johnson (a sponsor of the 1957 Act) marshalled enough support to end debate and pass the bill.
If the Senate were to return to the old “talking filibuster” rules, a Republican senator who wants to stop a Biden-backed piece of legislation (such as the Freedom to Vote Act that Republicans blocked earlier this week) could no longer stop the Senate from debating or voting on a bill by raising an objection to it. They would have to speak in opposition to the bill continuously if they want to stop the senate from considering it.
But the 60-vote threshold to end debate means GOP leader Mitch McConnell and his 49 colleagues could keep gumming up the works as long as they could keep 10 of their colleagues from defecting.
Some experts, including former senator Al Franken and scholar Norm Ornstein, have pushed for Democrats to change rules to set a 40-vote threshold to continue debate rather than 60 votes to end it. This would keep the onus on the minority to actively work to stop the Senate from voting.
What about a ‘carve-out’ to the filibuster?
But returning to the old ways of senators past might not cut it in the modern age.
Mr Biden alluded to this on Thursday when he said he thinks “we’re going to have to move to the point where we fundamentally alter the filibuster”.
“The idea that, for example, my Republican friends say that we’re going to default on the national debt because they’re going to filibuster that and we need 10 Republicans to support us is the most bizarre thing I ever heard,” he said.
Earlier this month, Senate Republicans used the tactic to block legislation suspending the nation’s statutory debt ceiling, risking a national debt default that experts say could spiral into a global economic catastrophe.
Although the GOP eventually allowed for a temporary increase to be signed into law, Senate Republican Leader Mitch McConnell has vowed to block any attempt to fix the problem that does not require Democrats to use a different — and equally arcane — parliamentary manoeuvre known as “reconciliation” to pass it.
Mr Biden said he thinks his allies in the Senate will reach a breaking point with the filibuster if Mr McConnell follows through on his threat.
“I think you’re going to see ... if they — gets pulled again, I think you’ll see an awful lot of Democrats being ready to say, ‘Not me. I’m not doing that again. We’re going to end the filibuster’,” he said.
In such a case, the process would be simple, and would follow the so-called “nuclear option” previously used to reduce the number of senators needed to end debate on judicial and executive branch nominees to 51.
First, a senator — most likely Democratic Leader Chuck Schumer — would raise a parliamentary point of order that the threshold to end debate on a debt ceiling bill is by majority vote. Vice President Kamala Harris or the senator then presiding would, under current rules, not sustain the point of order.
Mr Schumer would then appeal the ruling, which would bring about a vote. If 51 senators vote to not uphold the ruling, the threshold for ending debate on a debt ceiling bill would then be a majority, rather than the current 60 votes.
What would this mean for Biden’s agenda — and democracy?
If Democrats go “nuclear” for debt ceiling bills, they could just as easily add other carve-outs for different kinds of legislation.
In theory, this would let them pass voting rights and so-called “democracy protection” legislation with just 51 votes, so long as they hold at least 50 seats under a Democratic vice president.
That’s why many House progressives who’ve been frustrated by the continuation of Mr McConnell’s “legislative graveyard” under a Democratic majority have pushed for Mr Schumer to invoke the “nuclear option” and end the filibuster.
And with Republican state legislatures advancing more and more restrictive voting and election laws, democracy advocates such as Mr Ornstein say that killing the filibuster is a must if Mr Biden wants to ensure that his legacy is strengthening democracy, not presiding over a slow march to authoritarianism under a second Trump administration.
Speaking to The Independent this past February, Mr Ornstein put it bluntly: “The single most significant element of keeping from having voter suppression become the norm is to get reforms for federal elections that guarantee the right to vote”.
