When President Biden expressed support for a modest filibuster change this week, reform advocates took it as a major turning point. Their cause for celebration? The president was acknowledging that the fate of his agenda is tied to Senate procedure, which makes it difficult to deliver on campaign promises. And a stymied agenda could have consequences for the party.
"It will be Armageddon," Democratic Senator Jeff Merkley told CBS News when asked whether Democrats will suffer in the midterms if they don't enact filibuster reforms. "Our base will be so dispirited, so angry, so disaffected. They will stay home. And I understand why they will stay home if we failed them."
Merkley has long been pushing for filibuster changes, and introduced the "talking filibuster" which would require senators to actually hold the floor to hold up legislation rather than the current practice of phoning it in. In an interview with ABC News, Mr. Biden said he supported that kind of reform, which reminded him of how the upper chamber operated in his early days as a senator. Now, he said, "It's getting to the point where, you know, democracy is having a hard time functioning."
Support for significant filibuster changes is still a long way off, with some Democratic senators like Joe Manchin maintaining opposition to changing the 60-vote threshold for legislation even as they appear open to adjustments.
But advocates note that Republicans haven't yet filibustered legislation, such as the COVID relief bill, which was passed on party lines through a reconciliation process that only requires majority support. Once the opposition begins in earnest to agenda items like voting rights, climate, immigration and other Democratic priorities, the calls from the base of the party to change the upper chamber's rules will only grow louder.
"Right now it's an abstract issue, nothing has been filibustered yet. It's going to get real quickly," said Eli Zupnick, spokesman for Fix Our Senate, which launched a six figure ad campaign this week pushing lawmakers to eliminate the filibuster.
Democratic candidates "didn't run on 'we will do these things for you if McConnell lets us,'" says Zupnick, a former Senate aide. "If Democrats show voters and people why they elected Democrats, they have the best chance they have of keeping the majority....But if they don't do those things, people will wonder why they put Democrats in charge if they don't deliver."
Merkley said his party's voters are growing frustrated having watched Republicans change the filibuster rules to confirm Supreme Court nominees with a simple majority — the court being a top GOP agenda item — while Democrats express reluctance to amend the rules for their priorities.
"Our base is going, 'what a bunch of idiots you are,'" Merkley said. "You campaigned on this stuff and you're going to let the Republicans have a simple majority pathway while you just say, 'well I'm sorry but we can't get anything done because McConnell's blocking us?' They expect us to have the same guts to get things done that the Republicans had to get their agenda done."
Senator Dick Durbin, a member of leadership, has been pushing for filibuster reform this week. "If it weren't for reconciliation, we would have little to show for this session other than nominations," he said.
The filibuster is not mandated through the Constitution, and rules about preventing legislation have been revised over time. But it didn't become a prevalent tool for obstruction until the late 20th century. And over the past decade, "there have been as many cloture motions in the last 10 years (959) as there were during the 60-year period from 1947 to 2006 (960)," according to the Brennan Center.
In 2013, then-Senate Majority Leader Harry Reid moved to change the filibuster to allow judicial and executive appointments with simple majority support after Republicans blocked President Obama's nominees. Then, when Republicans gained control of the Senate, McConnell changed the rules to approve Supreme Court justices with a simple majority, paving the way for the confirmation of three nominees under the Trump administration.
Changes to the filibuster are "usually connected to a specific policy moment," says Molly Reynolds, a senior fellow in Governance Studies at Brookings. "It's a long war of attrition...where both sides are sometimes in the majority sometimes in the minority and get frustrated with the obstruction that they were willing to make a change to the way the Senate works."
Activists believe the specific policy moment to push for filibuster reform this time around is on voting rights, with a sweeping proposal having passed the house and facing likely death in the Senate. The issue was central to Senate campaigns in Georgia that gave Democrats the majority.
One of those senators, Rafael Warnock, used his maiden floor speech this week to push that message. "It is a contradiction to say we must protect minority rights in the Senate while refusing to protect minority rights in the society," he said. "Colleagues, no Senate rule should overrule the integrity of the democracy and we must find a way to pass voting rights whether we get rid of the filibuster or not."
Former President Obama endorsed killing the filibuster to protect voting rights, noting that it has traditionally been used to block civil rights legislation.
But Mr. Biden hasn't gone as far. And there are limits to how much the talking filibuster that he endorsed could actually alleviate obstruction, if 60 votes would still be required to move on to the bill after debate. There is also a question about whether such a hold-up would have any effect on other legislation the Senate is considering.
Currently, the "no-show" filibuster allows the Senate to move onto other items while bringing the filibustered bill to a dead halt. The procedural move could be altered to force senators who wish to block a measure to stand on the floor and talk about it for hours and days. Doing so could make them a little more selective about the bills they'd filibuster. And talking filibusters could exact a cost from the majority, too, if they stop action on all other items, including priorities the majority wants to move – like other bills or nominations – while the filibuster is in progress.
What would this accomplish, besides slowing the already famously slow-to-act Senate? If legislators had the stomach for it, true filibuster reform could give senators more time to talk to each other and find compromise.
"As we look at these reforms the devil is in the details," says Zupnick. "It has to be the case these reforms actually lead to the ability to pass bills. There has to be a moment it comes to a conclusion."
Manchin, who has expressed openness to a talking filibuster, said this week that keeping the 60-vote threshold in place is a priority for him and he said he opposed making exceptions for certain pieces of legislation like a voting rights bill. His presence in the senate is a reminder that even if Democrats had the vote to change the filibuster rules, which they don't, it isn't clear that some of the more moderate Democrats would support every big piece of legislation anyway.
"We always have to ask ourselves are there actually 50 votes in the Senate? The rules aren't magic, they can't force agreement where agreement doesn't exist," says Reynolds.
The West Virginia senator pointed to the other part of Biden's comments in which he said he didn't think the filibuster had to be eliminated, and took those comments to show "how important it is to keep the filibuster, protecting the rights of the minority." On potential reforms, he added: "Everyone has different ideas and there's a good conversation to be had."
Adam Jentleson, a former aide to Senator Reid who recently published a book about reforming Senate rules called Kill Switch, says that a talking filibuster with 60-vote threshold in place could alleviate obstruction on smaller bills, but that Republicans would likely mount an effort to be present to block big ticket items.
Jentleson says that reforms to the filibuster are likely going to take a while, but that Mr. Biden's comments this week were significant in moving the needle.
"It's not everything we want but it's very encouraging," he said. "Not just the endorsement of a talking filibuster, but also his reflection of the use of the filibuster since his time in the Senate, which shows he's thinking very seriously about this."
"It's March of 2021 and you've got President Biden and Joe Manchin endorsing the concept of reform. Even if in very mild terms, that alone is lightyears ahead of where I thought we would be at this point," he said. "This the senate equivalent of a very rapid shift."