Democrats are stepping talks about reforming or abolishing the filibuster if they win back the Senate and White House in November.
The renewed discussions are being spurred by Sen. Jeff Merkley (D-Ore.), an outspoken liberal who has long championed a revamping the procedural tactic that Democrats see as a serious obstacle to passing legislation and confirming nominees.
Merkley has floated various proposals with colleagues in recent days as polls show former Vice President Joe Biden widening his lead over President Trump and Democrats increasing their odds of picking up the three Senate seats needed for majority control if Biden wins.
“I just heard they started talking and I’m interested in listening to anything because the place isn’t working. I just heard about it this morning,” Sen. Joe Manchin (D-W.Va.), a prominent moderate, said Thursday of the uptick in discussion about filibuster reform should Democrats win back the majority.
Manchin said he expected to review proposals from colleagues soon, and cited Merkley as a key player.
His willingness to review filibuster reform is a reflection of how frustrated Democrats — and many Republicans — have become with legislative gridlock.
Some of that frustration was on display last week after a motion to proceed to a GOP police reform bill failed after a 55-45 vote fell short of the 60 needed to advance. Manchin was one of the handful of Democrats who voted in favor of proceeding.
Manchin’s new outlook on filibuster reform contrasts with comments he made just a year ago on the topic.
“I would hope that they would not ever, ever consider doing away with the filibuster, which is basically the whole premise of the Senate,” he told The Hill in July 2019.
Another prominent Democratic moderate, Sen. Chris Coons (D-Del.), has also shifted his position on filibuster reform in recent days.
Coons, a top Biden ally and one of his early campaign surrogates on Capitol Hill, told Politico in an interview: “I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn.”
Coons said he would “try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails” but also warned a Biden administration would be “inheriting a mess” that would require “urgent and effective action.”
The remarks are a near-180 from a moderate who worked with Sen. Susan Collins (R-Maine) in 2017 to organize a letter signed by 61 senators calling on Senate leaders to “preserve existing rules, practices and traditions” in an effort to slam the door on talk of eliminating the filibuster.
But that was three years ago. Democrats are now growing increasingly confident that Biden will win and they will take back the Senate, with polling showing an erosion of Trump’s numbers amid the coronavirus pandemic and widespread civil unrest following the death of George Floyd.
A New York Times/Siena College poll published Thursday showed Trump’s numbers weighing down GOP Senate candidates in Arizona, Michigan and North Carolina. The president’s weak support among women and white, college-educated voters is particularly alarming for the GOP’s chances of keeping the Senate.
Filibuster reform also has a powerful ally in Sen. Elizabeth Warren (D-Mass.), who is on the shortlist for consideration as Biden’s running mate.
“I’ve supported filibuster reform for a long time,” she said. “If the Republicans think that they are going to be able to hold up the actions that need to be taken in this country by using the filibuster then they’re wrong. We’re going to have to fight them.”
“If we have a Democratic majority in the Senate and a Democrat in the White House and the Republicans are trying to use the filibuster in order to block what the American people want to see us do, then it will be time to change the filibuster,” she added.
But some members of the Democratic Caucus need convincing.
“I think that would be a huge mistake,” Sen. Angus King (Maine), an independent who caucuses with Democrats.
“If we didn’t have the 60-vote rule today, the ACA would be gone,” he said, referring to the 2010 Affordable Care Act. “Medicaid would be severely compromised.”
He called the filibuster, which requires legislation to muster 60 votes before advancing, “a stabilizer” that “forces the body to work in some semblance of bipartisanship.”
Sen. Dianne Feinstein (D-Calif.) said, “I’ve been here for 26 years [and] found it stood well for the body.”
“If it’s not broke, don’t fix it,” she said.
Merkley is discussing an array of possible reforms with his colleagues.
He argues that even if the 60-vote threshold is reduced to a simple majority, the rights of the minority party could still be protected by enhancing the power to offer and adopt amendments.
“I am talking with everyone in the caucus about how to make the Senate work and restore it as a legislative body,” he said.
Merkley said when he was a Senate intern in the 1970s and later worked for the Congressional Budget Office in the 1980s, power was much more evenly distributed among senators.
“The most important piece of that was the ability to do amendments and amendments were simple majority, motions to proceed were simple majority and most final passage was simple majority,” he said, referring to votes on adopting amendments, beginning debates and passing bills.
“You basically had the legislative body operating as designed by our founders,” he said.
Merkley noted that in Federalist Paper No. 58, James Madison rejected a proposal for requiring more than a majority for a legislative quorum because it would reverse “the fundamental principle of government.”
“It would be no longer the majority that would rule: the power would be transferred to the minority,” Madison wrote.
The other big change in the Senate over the years, Merkley said, was that it’s become “routine” to require “super majority” 60-vote thresholds to move legislation, even items that are relatively noncontroversial.
He said the Senate’s rule requiring an intervening day to pass between when the majority leader files a cloture motion to cut off debate — which requires 60 votes — and when the chamber votes was instituted because filibusters were considered so rare, and voting to end them was a momentous event.
Changing Senate rules by regular order requires 67 votes, which means Democrats would likely have to employ a controversial tactic often referred to as “the nuclear option” to change the filibuster rule by a simple majority.
Such a vote would likely break strictly along party lines. That would put Democrats in a position of needing at least 50 votes from their caucus if Biden wins the White House.
Senate Majority Leader Mitch McConnell (R-Ky.) triggered the nuclear option in 2017 to reduce the threshold for confirming Supreme Court nominees from 60 votes to a simple majority. He did so to confirm Trump’s first nominee to the Supreme Court, Neil Gorsuch.
That move came four years after Democrats, under then-Senate Majority Leader Harry Reid (D-Nev.), used the same controversial tactic for votes on most presidential nominations.
Many Democrats say they’re happy to hear what Merkley has to say on filibuster reform, even if it faces an uphill battle.
“I’m very open to it. Look, I was governor of a state with two legislatures and everything is operated by simple majority. It works fine,” said Sen. Tim Kaine (D-Va.).
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