Many Senate Democrats are preparing for a key moment they believe will help make their case to gut the filibuster once and for all: when Senate Minority Leader Mitch McConnell and his Republican colleagues block a major voting rights bill they say is critical to beat back restrictions imposed in GOP-led states across the country.
“If Republicans block S.1, that will turn up the heat on taking away Mitch McConnell’s veto,” said Sen. Elizabeth Warren, a Massachusetts Democrat, referring to the sweeping voting rights and campaign finance overhaul her party leaders introduced on Wednesday.
But they are running into a basic problem: the math.
Democrats lack the votes to change the Senate’s rules by lowering the threshold for breaking a filibuster from 60 votes to 51, meaning that Senate Republicans will almost certainly maintain their power to shape the outcome of President Joe Biden’s legislative agenda for at least the next two years in the evenly divided chamber, according to interviews with more than a dozen Senate Democrats.
Changes that advocates have long sought – such as requiring 41 senators to stand on the floor to sustain a filibuster – are unlikely to be approved. And even the demands made by senior Democratic Party leaders, such as Rep. James Clyburn of South Carolina, to create a special exemption so that civil rights and voting rights legislation is not subjected to the filibuster lack enough support in the Senate to make that a reality.
One big reason: Sen. Joe Manchin, the West Virginia Democrat who says he’s fiercely guarding the institution much the way his predecessor did, the late Democratic Sen. Robert Byrd. Manchin says he’s protecting the rights of the minority, something he says Democrats will need whenever Republicans regain control of the chamber.
Manchin is open to some changes – such as requiring senators to stand on the floor and actually argue, a position Biden just adopted. Such a change to require a “talking filibuster” would amount to a departure from the silent filibuster permitted under current rules, which allow a simple threat to force the Senate into time-consuming procedural steps and a 60-vote threshold they must clear to advance bills.
But Manchin again made clear he is drawing a firm line: The 60-vote threshold will stay, and no exceptions will be allowed.
“I’m still at 60,” he told CNN on Wednesday. “That’s where I’m at. I haven’t changed.”
Manchin also rejected calls by proponents of gutting filibuster rules to require 41 senators to be present to sustain a filibuster.
“No, I’m still at 60. OK?” he said.
Manchin’s view is important because Democrats can’t muscle through any rules changes without a unified caucus, given that the chamber is divided 50-50 and all Republicans are likely to oppose such changes. In order to change the filibuster, the Senate must invoke the “nuclear option,” a rarely used tactic that allows a simple majority to change the chamber’s rules.
Senate Democrats used the nuclear option in 2013 to reduce the threshold to 51 votes for presidents’ nominees, other than for the Supreme Court. Then in 2017, Senate Republicans nuked the filibuster and created a 51-vote threshold for Supreme Court nominees, paving the way for three of then-President Donald Trump’s justices to be confirmed.
Now pressure is building to gut the filibuster for all legislation so that it can be advanced by a simple majority. But Manchin and other Democratic senators are either leery or downright opposed to reducing the threshold to 51 votes, including Sens. Kyrsten Sinema of Arizona, Jon Tester of Montana and Dianne Feinstein of California, along with Angus King of Maine, an independent who caucuses with Democrats.
Feinstein, a veteran Democrat who’s the oldest member of the body, told CNN “not at this time” when asked if she supported reducing the threshold to a simple majority.
“I’ve seen the pro and con,” Feinstein said when asked if she were concerned Republicans would impose their agenda on Democrats if they controlled the White House, House and Senate all at the same time in the future. “I am concerned. That is a factor. It’s one of the reasons I’m hesitant.”
King added: “After seeing it operate in the majority and the minority, I can see it’s a double-edged sword. And Democrats may be very intent in getting rid of it now, but that means they won’t have it as a protection under a future Republican president and Republican Senate.”
Democratic leaders plan to build case for gutting filibuster
But Democratic leaders are hoping that Republicans’ behavior will ultimately change the calculus in their caucus, saying that once Republicans block bills their party has long favored – such as universal background checks for gun purchases and an expansion of voting rights – they think it will force a discussion within the party about how to proceed.
Senate Majority Whip Dick Durbin, an Illinois Democrat, said Wednesday that Democrats need to demonstrate why they believe the process has been abused before making changes, meaning they need to bring bills forward that Republicans could block before taking a dramatic step to weaken the potent tool.
“I think this is a process,” Durbin said. “There are some (Democrats) who are skeptical of any changes in the rules, and we have to demonstrate to them how the rules can be used and abused before we go any further.”
Democrats are pointing to the voting rights bill as what they hope will lead to a shift in attitudes.
As he unveiled the voting rights bill, which has already passed the House, Senate Majority Leader Chuck Schumer told reporters Wednesday that “failure is not an option” and warned that if Republicans use the filibuster to block it, Democrats will huddle to decide a path forward. Democrats have not said when they plan to bring the bill to the floor, but the Senate Rules Committee will hear testimony about the measure next week.
“We will see if our Republican friends join us,” the New York Democrat said. “If they don’t join us, our caucus will come together and decide the appropriate action to take. Everything is on the table. Failure is not an option.”
Pressed on whether Democrats would use the nuclear option to weaken the filibuster over the objections of Republicans, Schumer punted again: “Everything is on the table,” he said.
Tester, a centrist, said that if Republicans block the election overhaul bill he believes Democrats should meet and discuss what to do about the filibuster. But he also cautioned that Democrats should keep trying to pass bills and see when the time is right to force any changes.
“I think we should have the conversation. I’m not saying it’s the one that flips the switch over, but it would certainly have an impact,” he said. “We’ll just take it one at a time and we’ll see which stick breaks the camel’s back, if, in fact, it comes to that.”
Tester also said that he’s working with a bipartisan group of about 20 members – who met Wednesday to discuss infrastructure spending and are trying to find compromise between the parties, something that could head off the mounting pressure to change the filibuster.
“Hopefully, we can get cooperation,” he said. “That’s the goal.”
Sen. Chris Van Hollen, a Democrat of Maryland, supports getting rid of the 60-vote threshold to overcome a filibuster for legislation and warned that if Republicans block the election overhaul bill, it will provide “momentum” to the effort to weaken the filibuster.
“I appreciate the fact that many of my colleagues want more of a record of clear obstruction this Congress and so when that tipping point comes, I don’t know,” he said.
But Manchin isn’t showing signs of backing off his view. He said he would oppose changing the filibuster rules to create carve-outs so certain bills can advance with the backing of a simple majority of senators.
“That’s a little bit like being pregnant – maybe,” he said of such an idea, an apparent reference to the saying “you can’t be half-pregnant.”
And asked if Republicans blocking S.1, the election overhaul bill, would be enough to force him to change his view, Manchin shook his head and walked onto an elevator.
This story and headline have been updated to reflect additional developments Wednesday.
