Manchin Signals Openness to Filibuster Reform

Sen. Joe Manchin, a moderate West Virginia Democrat, signaled on Sunday that he is open to modifying the filibuster to make it more “painful” for the minority party to invoke, while maintaining that he does not support removing the filibuster altogether. The comments come as progressive and liberal Democrats call to eliminate the filibuster altogether to allow the Democratic Party to pass substantial reforms.

The filibuster is a parliamentary procedure used in the Senate (it does not exist in the House) to indefinitely prolong debate on a bill to prevent a measure from being brought to a floor vote. Under the current rules of the U.S. Senate, a senator only needs to say that he is filibustering a measure, and that filibuster will remain in place until he chooses to revoke the filibuster, or if it is removed by cloture. Cloture is a process in which three-fifths of the Senate (meaning 60 senators) vote to end debate on a measure and proceed immediately with a floor vote.

In 1970, after a Senate rule change which made it so filibusters wouldn’t completely block up Senate business, it made it substantially easier for the minority party to simply threaten filibuster to stop a measure from being considered. As the Senate evolved, this meant that virtually every bill to pass the Senate would require 60 votes in order to pass, essentially making it a body which could only pass most legislation with a supermajority. Since 1979, no party has ever continually held 60 seats in the Senate for a substantial amount of time. (In the 111th Congress between 2009 and 2011, the Democrats had a brief period of time where they held 60 seats, but never for the full congressional term.)

The filibuster was originally intended to allow the minority party to have a say in major legislation, and to promote bipartisanship, but critics of the filibuster now say that in recent Congresses, the filibuster has increasingly been abused by the minority and is in urgent need of reform or abolishment.

Essentially, even though the Democrats hold working majorities in both houses of Congress and the presidency, due to the filibuster in the Senate, that body alone is enough to thwart most of the majority party’s legislation and allow the minority to control the majority.

The filibuster has been changed in recent years, too. Using the so-called “nuclear option,” which allows the majority party to change the rules of the Senate without the consent of the minority, in 2013, the Democratic Senate changed the rules so that filibusters could not be used on presidential nominees (except Supreme Court judicial nominations). Then, in 2017, the Republican Senate further altered the rules to prevent the filibuster from being used in judicial nominations too, allowing former President Trump to appoint three justices to the Supreme Court.

In addition, the filibuster is also not able to be used on bills passed via the budget reconciliation process, which is how Trump’s Tax Cuts and Jobs Act of 2017 and Biden’s COVID-19 stimulus bill, dubbed the “American Rescue Plan,” was able to pass the Senate. However, most legislation is unable to be passed under the budget reconciliation process, such as increasing the minimum wage to $15.

With Democrats having won a trifecta in the government since the early years of the Obama administration, Democrats are seeking to push an ambitious progressive agenda with little Republican backing, including legislation to deal with voting reforms, LGBTQ rights, gun control, immigration, climate control, and more. With the filibuster in place, it makes it all but impossible for these to make it through the Senate.

That is where Manchin’s comments come in. Being the most conservative-leaning Democrat in an evenly divided Senate, Manchin is able to exert considerable influence to sway bills that conform to his ideology, simply by threatening to tank the legislation. He and Sen. Kyrsten Sinema, another moderate, but less conservative, Democrat from Arizona, have long been two opponents to removing the filibuster.

However, on Sunday, Manchin signaled in a show on Fox News Sunday that he would like to make the filibuster more difficult for the minority party to use.

“The filibuster should be painful, it really should be painful, and we’ve made it more comfortable over the years,” said Manchin. “Maybe it has to be more painful.”

He said further, “If you want to make it a little bit more painful, make him stand there and talk. I’m willing to look at any way we can, but I’m not willing to take away the involvement of the minority.”

Manchin is likely implying that he supports making a small but drastic rule change to the filibuster, which, instead of just allowing senators to declare that they are filibustering, would require a senator to continue speaking. If the senator or senators filibustering gave up and stopped talking, the presiding officer could then immediately declare the prolonged debate period over and require a floor vote on the measure, which requires only a simple majority to pass.

He is also not ruling using budget reconciliation to pass H.R. 1, a substantial voting rights and election reform bill passed in the House on party lines last week. This could be a vital workaround to allow Democrats to pass a sweeping voting overhaul bill while still keeping the filibuster intact. However, it is unclear how the bill would fall under the rules required to pass a bill by budget reconciliation as H.R. 1 is not budget-related.

Sen. Jeff Merkley, D-Ore., a proponent of eliminating the filibuster altogether, said, “I think a common refrain that you’ve heard from so many members is: ‘If there’s going to be a filibuster it needs to actually be a filibuster that those who want to obstruct actually should make their case before the American people.’ They should have to spend the time and energy to show up and hold the floor.”

Merkley has spent years lobbying his colleagues to open up to changing the filibuster to allow the majority party to pass bills through the Senate. He said there’s been “enormous change” from within the Senate Democratic Caucus in favor of changing the filibuster rules. Merkley has proposed that if at least 41 senators vote to block ending debate on a bill or nominee (i.e., invoking the filibuster in its current form), the measure would then enter a prolonged debate period which would remain, preventing a floor vote on the measure, as long as one or more senators could physically continue debating the issue on the floor. This is likely the proposal that Manchin has signaled he could support.

Another Democrat who is a proponent of modifying the filibuster, Sen. Alex Padilla of California, said that if the GOP continues to block major Democratic legislation such as voting reform, it could significantly lessen the enthusiasm for defending the filibuster from moderate Democrats.

The whole Senate Democratic Caucus is likely to discuss in the coming days and weeks over invoking the “nuclear option” to change the filibuster rules and try and unify all 50 Democratic senators under a single plan.

If Manchin agrees on a proposal, it is highly likely that other moderate senators skeptical of filibuster changes will join him, too.

And although Biden has signaled it is his “preference” to not change the filibuster, he could certainly be persuaded if much of his major legislative priorities end up being blocked by Republicans invoking the partisan filibuster.