Democrats Can't Kill the Filibuster. But they Can Gut It

Instead of naming and shaming them, Democrats might consider looking at what Manchin and Sinema like about the filibuster. Sinema recently said, “Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.” Last year, Manchin said, “The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.”

If you take their views at face value, the goal is to preserve some rights for the Senate minority, with the aim of fostering compromise. The key, then, is to find ways not to eliminate the filibuster on legislation but to reform it to fit that vision. Here are some options:

Make the minority do the work. Currently, it takes 60 senators to reach cloture — to end debate and move to a vote on final passage of a bill. The burden is on the majority, a consequence of filibuster reform in 1975, which moved the standard from two-thirds of senators present and voting to three-fifths of the entire Senate. Before that change, if the Senate went around-the-clock, filibustering senators would have to be present in force. If, for example, only 75 senators showed up for a cloture vote, 50 of them could invoke cloture and move to a final vote. After the reform, only a few senators in the minority needed to be present to a request for unanimous consent and to keep the majority from closing debate by forcing a quorum call. The around-the-clock approach riveted the public, putting a genuine spotlight on the issues. Without it, the minority’s delaying tactics go largely unnoticed, with little or no penalty for obstruction, and no requirement actually to debate the issue.

One way to restore the filibuster’s original intent would be requiring at least two-fifths of the full Senate, or 40 senators, to keep debating instead requiring 60 to end debate. The burden would fall to the minority, who’d have to be prepared for several votes, potentially over several days and nights, including weekends and all-night sessions, and if only once they couldn’t muster 40 — the equivalent of cloture — debate would end, making way for a vote on final passage of the bill in question.

Go back to the “present and voting” standard. A shift to three-fifths of the Senate “present and voting” would similarly require the minority to keep most of its members around the Senate when in session. If, for example, the issue in question were voting rights, a Senate deliberating on the floor, 24 hours a day for several days, would put a sharp spotlight on the issue, forcing Republicans to publicly justify opposition to legislation aimed at protecting the voting rights of minorities. Weekend Senate sessions would cause Republicans up for reelection in 2022 to remain in Washington instead of freeing them to go home to campaign. In a three-fifths present and voting scenario, if only 80 senators showed up, only 48 votes would be needed to get to cloture. Add to that a requirement that at all times, a member of the minority party would have to be on the floor, actually debating, and the burden would be even greater, while delivering what Manchin and Sinema say they want — more debate.