President Joe Biden for the first time on Tuesday endorsed significantly overhauling the legislative filibuster by requiring senators who wish to obstruct to hold the floor and speak continuously, a major departure from the current no-show filibuster that allows lawmakers to tank legislation with minimal effort.
Previously averse to filibuster reform, Biden backed the change at a moment when a growing number of Democratic senators are clamoring for significant weakening or outright abolition of the 60-vote rule, which gives the minority party in a narrowly divided Senate considerable power to block legislation.
Biden said in an interview with George Stephanopoulos of ABC News that the modern filibuster—which can be deployed via email—has produced so much obstruction that "democracy is having a hard time functioning."
"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," the president said. "You had to stand up and command the floor, you had to keep talking."
Having both Biden and Sen. Joe Manchin (D-W.Va.)—the chamber's most conservative Democrat—on board with reviving the talking filibuster significantly increases the likelihood of a rule change, which would require the support of the entire Senate Democratic caucus plus a tie-breaking vote from Vice President Kamala Harris.
The specific details of what reform would look like remain up in the air. Citing recent conversations with Senate sources, The Intercept's Ryan Grim explained an approach Democrats could take:
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 will have anytime in our lifetimes, probably, from here on out. 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 Mitch 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.
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. One possible rule: If two-thirds of senators present-and-voting support cloture, then cloture is invoked, and the debate is over. That would mean that if all 50 Democratic senators showed up at 3 am 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 on the talking to continue, the debate is over. And again, if that vote is called at 3 am, there may not be 41 senators able to get there within the allotted time.
While applauding mounting support for a filibuster overhaul, Adam Jentleson of the Battle Born Collective stressed in a statement late Tuesday that "there is a long way to go in this fight." Unlike Manchin, Sen. Kyrsten Sinema (D-Ariz.) has not said she's open to any changes to the filibuster despite strong support for reform among her constituents.
"President Biden's willingness to reform the Senate filibuster suggests he will not let a Jim Crow relic that has no place in the Constitution stand in the way of the results he promised to deliver," said Jentleson, who previously served as a staffer for former Senate Majority Leader Harry Reid (D-Nev.). "This is significant and we look forward to the president's continued leadership on this issue."
The president's endorsement of filibuster reform came as progressive advocacy groups and lawmakers are vocally warning that much of the Democratic agenda—including a major expansion of voting rights, sweeping labor law reform, and climate action—is destined to languish in the Senate's legislative graveyard as long as the 60-vote rule remains in place.
"This is a start, but the American people need and demand more," Sen. Ed Markey (D-Mass.) said of Biden's comments Tuesday. "They need us to deliver on the promise of democracy—racial justice, a Green New Deal, voting rights, gun safety, the PRO Act, expanding SCOTUS, and a $15 minimum wage—and that will require eliminating the filibuster."
In what observers interpreted as a signal that he's getting worried about losing a major tool of obstruction, Senate Minority Leader Mitch McConnell (R-Ky.) threatened in a floor speech Tuesday to bring about total "chaos" in the upper chamber if Democrats target the filibuster, which Senate Republicans eliminated for Supreme Court nominees in 2017.
"Mitch McConnell is terrified of the filibuster being abolished," consumer advocacy group Public Citizen tweeted in response to McConnell's remarks. "Is there any better sign that we should do it?"