WASHINGTON — The future of the Senate filibuster is increasingly in doubt, even though Republicans have yet to use one to block a single Democratic bill in the Biden era.
While the real showdown lies ahead, President Biden’s endorsement this week of a change in the rules governing the Senate’s signature procedural weapon represented a major shift in the political dynamic. Almost overnight, the prospect of Democrats taking action to weaken the minority party’s power to stall legislation has shifted from a far-off theoretical question to a fast-moving push with presidential buy-in.
What Mr. Biden said — a tempered embrace of requiring filibustering senators to hold the floor — was far less important than the fact that he said it at all. For Mr. Biden, a protector of the Senate if there ever was one, to declare that the filibuster needed updating was a big far-reaching deal, to paraphrase the former vice president’s hot-mic comment on enactment of the health care law.
“As a student and creature of the Senate, he certainly knows how to choose his words carefully on this subject,” said Senator Richard J. Durbin of Illinois, the No. 2 Senate Democrat, who has suddenly emerged as one of the most prominent advocates of overhauling the filibuster. “I think he’s acknowledging the obvious — that the filibuster has really shackled the Senate and made it far less productive.”
Democrats still lack the votes to overturn the current rules, which effectively require proponents of a bill to muster a 60-vote supermajority to advance it. The prospect that they might try has uncovered more queasiness among Democratic senators, underscoring the reality that progressive activists and senators eager to modify the filibuster have plenty of work to do if they are to prevail.
But they already knew that. To them, the fact that Mr. Biden and Senator Joe Manchin III, Democrat of West Virginia and the party’s most outspoken backer of the filibuster, have both expressed some openness to change is more than they could have imagined at this stage.
“That’s light years ahead of where I would have hoped we’d be,” said Adam Jentleson, a former top Democratic Senate aide who is advising the antifilibuster forces. “There’s a long way to go, but we are ahead of schedule.”
Experience has shown that building up to such a confrontation takes time. For instance, Senate Republicans began talking about reducing the filibuster threshold on judicial nominations in 2005, but it did not happen until 2013 — and then the action was taken by Democrats, who spent months building their case before pulling the trigger.
The growing momentum behind the current movement is remarkable considering there has not yet been a legislative filibuster this session. Democrats passed the coronavirus aid bill under a special budget process that protected the legislation from a filibuster so that Republicans would have no opportunity to derail it as long as a majority of Democrats held together. Nominations are no longer subject to a 60-vote threshold, allowing Democrats to squeeze through Mr. Biden’s choices with few or no Republican votes.
But filibusters are coming, beginning with a voting rights measure that is set for a Senate hearing next week, followed by other bills to legalize undocumented immigrants, strengthen gun safety laws, bolster labor rights and more that Republicans strongly oppose. Democrats are already vowing to prevent the sweeping voting rights bill — which they see as crucial to stopping Republicans from enacting strict voting restrictions at the state level, and regard as the civil rights issue of modern times — from being derailed by process.
“I’m here to say that this issue is bigger than the filibuster,” Senator Raphael Warnock, the newly elected Democrat of Georgia, said on Wednesday in his first Senate floor speech. “I stand before you saying that this issue — access to voting and pre-empting politicians’ efforts to restrict voting — is so fundamental to our democracy that it is too important to be held hostage by a Senate rule, especially one historically used to restrict expansion of voting rights.”
Mr. Warnock was referring to the infamous deployment of the filibuster by Southern Senate Democrats in the 1950s and 1960s as a weapon to preserve segregation, by blocking civil rights legislation. Democrats say they believe that President Barack Obama — himself a regular victim of Republican filibusters — effectively reframed the debate around the filibuster at the funeral of the civil rights icon John Lewis in July, when he referred to it as a “Jim Crow relic,” placing it in a much harsher, racially charged light. Democrats now regularly refer to the filibuster as part of the segregationist past, trying to make it more difficult to defend.
But Republicans are defending it, warning that a Democratic move to weaken the rules would result in a dystopian Senate where nothing could be accomplished — though many might say that is a description of the current Senate. Republicans note that Democrats regularly took advantage of the filibuster when they were in the minority, and charge that they only want to blow it up now that they control Congress and the White House.
“Over the last six years, they filibustered countless bills on everything from pandemic relief to police reform,” said Senator John Cornyn, Republican of Texas. “But now it appears that our Democratic colleagues — at least their leadership — have flip-flopped. The political tides have shifted. And since the radical left wants to get rid of the filibuster, so do they.”
Senator Mitch McConnell, Republican of Kentucky and the minority leader, frequently reminds Democrats that he refused to ditch the filibuster despite pressure from Donald J. Trump when he was president and Republicans held the House and Senate. Fact check: true.
But Mr. McConnell’s resistance was not all about preserving the bedrock institutional principles of the Senate. He had political reasons of his own, including the reality that the filibuster served as a buffer between the Republican Senate and the hard-right policies sought by Mr. Trump and his supporters on immigration and other issues. The filibuster provided Mr. McConnell an excuse for not moving ahead on bills he knew would cause political trouble for some Republican senators.
Mr. McConnell is also warning Democrats that if they gut the filibuster, they will be sorry when the shoe is on the other foot and Republican congressional majorities and presidents are in a position to reverse progressive policies and push through their own conservative wish list, including anti-abortion and anti-union initiatives and an immigration crackdown.
“The pendulum,” Mr. McConnell warned, “would swing both ways, and it would swing hard.’’
Many Democrats seem willing to take that risk, particularly if it means enacting a landmark voting rights law they see as crucial to protecting the ability of their supporters to cast ballots. They also know that the major progressive proposals they would be able to enact into law would not be so easy for a future Republican Senate to unwind, as evidenced by the failure of Republicans to repeal the Affordable Care Act despite years of effort while they held power.
While some Democrats are not ready to defang the filibuster, the support of the president for change makes it harder to resist and increases the political pressure on them. Both Democrats and Republicans remember that Harry Reid, then the majority leader, did not have the votes to weaken the filibuster against nominations in 2013 — right up until the moment that he did. Those advocating weakening the filibuster believe that coming showdowns over legislation overwhelmingly favored by their voters will strengthen Democratic resolve.
“I think we will see the year unfold,” said Senator Jeff Merkley, Democrat of Oregon and a longtime advocate of significant changes to the filibuster. “If McConnell continues his strategy of obstruction and delay, then we’re going to work hard to bring everybody together to make the Senate work.”