Filibuster reform gains steam with Democrats

Democrats are stepping up 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 MerkleyJeff MerkleyDemocrats say change to filibuster just a matter of time Democrats call on Biden administration to ease entry to US for at-risk Afghans Manchin, Sinema join GOP to sink filibuster change for voting bill MORE (D-Ore.), an outspoken liberal who has long championed 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 BidenJoe BidenDeputy AG: DOJ investigating fake Trump electors On The Money — Vaccine-or-test mandate for businesses nixed Warner tests positive for breakthrough COVID-19 case MORE widening his lead over President TrumpDonald TrumpDeputy AG: DOJ investigating fake Trump electors Former Boston Red Sox star David Ortiz elected to Baseball Hall of Fame Overnight Health Care — Senators unveil pandemic prep overhaul MORE and Democrats increasing their odds of picking up the three Senate seats needed for majority control if Biden wins.

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“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 ManchinJoe ManchinBiden to meet with CEOs to discuss Build Back Better agenda Hoyer says 'significant' version of Build Back Better will pass this year Gallego went to New York to meet Sinema donors amid talk of primary challenge: report MORE (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.

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Another prominent Democratic moderate, Sen. Christopher CoonsChris Andrew CoonsThe Hill's 12:30 Report - Presented by Facebook - Biden's public moment of frustration Russia announces military exercises amid standoff with US, NATO over Ukraine Democrats say change to filibuster just a matter of time MORE (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 CollinsSusan Margaret CollinsThe Hill's Morning Report - Biden, NATO eye 'all scenarios' with Russia Bipartisan Senate group discusses changes to election law The Hill's Morning Report - US warns Kremlin, weighs more troops to Europe MORE (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 police killing 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 WarrenElizabeth WarrenFiscal conservatives should support postal reform  Five Democrats the left plans to target Arizona Democratic Party executive board censures Sinema MORE (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 Senate Democratic Caucus need convincing.

“I think that would be a huge mistake,” Sen. Angus KingAngus KingThe Hill's 12:30 Report - Presented by Facebook - Biden's public moment of frustration Democrats say change to filibuster just a matter of time Bipartisan Senate group discusses changes to election law MORE (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.”

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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 FeinsteinDianne Emiel FeinsteinOvernight Energy & Environment — Starting from 'scratch' on climate, spending bill Senate panel advances bill blocking tech giants from favoring own products Eight senators ask Biden to reverse course on Trump-era solar tariffs MORE (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.

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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 “supermajority” 60-vote thresholds to move legislation, even items that are relatively uncontroversial.

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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 McConnellAddison (Mitch) Mitchell McConnellHow Cruz Supreme Court case could lead to unlimited anonymous election spending Trump and Biden should stop denigrating US elections The Armageddon elections to come MORE (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 GorsuchNeil GorsuchHow Cruz Supreme Court case could lead to unlimited anonymous election spending Will the justices end race-based affirmative action?  Supreme Court to revisit part of Native American land decision in Oklahoma MORE.

That move came four years after Democrats, under then-Senate Majority Leader Harry ReidHarry Mason ReidDemocrats say change to filibuster just a matter of time The Hill's 12:30 Report - Presented by Connected Commerce Council - Biden faces reporters as his agenda teeters Biden hits one-year mark in dire straits MORE (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 KaineTimothy (Tim) Michael KaineDemocrats call on Biden administration to ease entry to US for at-risk Afghans Manchin, Sinema join GOP to sink filibuster change for voting bill Desperate Dems signal support for cutting Biden bill down in size MORE (D-Va.).