President Joe Biden wants to make the filibuster great again.
Facing the prospect of legislative logjams that could derail his policy agenda, Biden recently told ABC News anchor George Stephanopoulos that he supports a Senate rule change to restore the talking filibuster, where marathon floor speeches are used to block bills from receiving a vote.
Biden previously opposed calls to reform or eliminate the cloture rule, which requires a 60-member supermajority to force a vote on filibustered legislation. Conservative commentators fumed over the flip-flop, which a Washington Post headline described as a “warning shot” aimed at Senate Minority Leader Mitch McConnell and Senate Republicans.
It’s far from a foregone conclusion, however, that obstructionism would persuade moderate Democrats like West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema to support ending the filibuster – or that the president would nudge them in that direction.
Biden sounded more like a Senate alum waxing nostalgic than a smooth operator plotting a gradual shift toward embracing the nuclear option. He described the traditional filibuster as “what it used to be when I first got to the Senate back in the old days.”
Republicans who want to mothball Democratic bills should have to “stand up and command the floor,” the president said. That’s a reasonable reform that would preserve the minority party’s ability to stonewall while discouraging overuse of the tactic due to the time and energy involved.
Long speeches intended to delay or prevent a vote began with the first Senate session in 1789, though the word “filibuster” – derived from a term for pirates in Dutch and Spanish – wasn’t used until the 1850s, according to a historical account on the Senate website.
There was no mechanism to end a filibuster until senators adopted a 1917 cloture rule requiring a two-thirds majority vote to conclude debate. In 1975, the Senate lowered the threshold to three-fifths.
Today, the mere threat of a filibuster is all that’s required to kill legislation.
“If Senate leaders know that at least 41 senators plan to oppose a cloture motion on a given measure or motion, they often choose not to schedule it for floor consideration,” the Brookings Institute explains.
Old-fashioned filibusters survive as political theater, rare enough that senators’ grandstanding is rewarded with national news coverage. Sen. Ted Cruz, R-Texas, read Dr. Seuss’ “Green Eggs and Ham” during a 2013 speech against the Affordable Care Act. He held the floor for 21 hours and 19 minutes.
Sen. Jeff Merkley, D-Ore., spoke for 15 hours and 28 minutes to protest Justice Neil Gorsuch’s Supreme Court confirmation vote in April 2017. McConnell, then majority leader, initiated a rule change to exempt high-court nominations from the 60-vote threshold.
The longest single-person Senate filibuster on record is an embarrassing footnote to history. South Carolina Sen. Strom Thurmond railed against the Civil Rights Act of 1957 for 24 hours and 18 minutes.
When it comes to endurance, no one holds a candle to Bill Meier. While serving in the Texas Senate, Meier filibustered a bill to weaken state public records laws for 43 full hours, setting a world record.
High-profile, controversial bills are a natural target for talkathons, but daylong speeches may prove too taxing and tedious for more routine legislation. In a September 2019 episode calling for the filibuster’s elimination, “Last Week Tonight” host John Oliver noted that the classic maneuver serves the purpose of “forcing senators to pay a physical price” to block bills.
The political pendulum provides ample reason to avoid nuking the filibuster altogether. Democrats who favor ending the practice would succumb to buyer’s remorse the next time Republicans control the chamber. McConnell predicted “a completely scorched-earth Senate” if the chamber reverts to simple majority rule.
Partisan gridlock has its pitfalls, but a legislative autobahn may be worse. The 60-vote threshold provides stability by preventing either party from repealing its counterpart’s laws whenever it controls Congress and the White House. What’s passed tends to stay passed.
Bringing back the talking filibuster would preserve a Senate tradition while tempering its use. More bills will reach Biden’s desk. Some will be stymied with hourslong speeches, but that’s better than being unceremoniously shelved without a hearing.