House Democrats are inundating the Senate with a series of partisan bills on issues such as expanding mail-in voting, terminating qualified immunity for police and phasing out fossil fuels, partly in hopes of pressuring holdout Senate Democrats to eliminate the filibuster.
The strategy involves Democrats likely losing some fights to Senate Republicans on high-profile legislation, thereby illustrating the purported need to change or junk the decades-old rule requiring 60 votes to proceed on most bills.
“I think we need some floor experience first,” said Senate Majority Whip Richard J. Durbin of Illinois. “Bring some bills to the floor. Let’s see what happens. We’re stumped on basic legislation by the filibuster. And I think members are fed up with it.”
In the first two months of the new Congress, Senate Republicans have yet to block any big measures favored by President Biden. The $1.9 trillion coronavirus relief package that gained final approval Wednesday was approved by the Senate under a budget rule that allows such bills to pass with a simple majority and — in this case — no Republican votes.
But the For the People Act passed by the House last week on a party-line vote, mandating new nationwide rules for elections, is a particularly urgent Democratic priority facing a Republican filibuster. The measure’s prohibition against states requiring voter ID, for example, would need to become law soon to take effect before the 2022 midterm elections, and to override multiple state legislatures that are enacting GOP-backed voter integrity measures.
So far, Democrats lack the 51 votes needed to eliminate the filibuster. Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona say they won’t approve the rule change, a position that Mr. Manchin reiterated Tuesday.
“There’s no way that I would vote to prevent the minority from having input into the process in the Senate,” Mr. Manchin said. “That means protecting the filibuster … the minority must have input, and it must be a process to get to that 60-vote threshold.”
Still, Democratic leaders are hopeful that losses on major legislation will make their base howl enough for Mr. Manchin and Ms. Sinema to get the message. Mr. Durbin said he hopes the two senators will come around when they “understand the futility of what we’re engaged in.”
Senate Minority Leader Mitch McConnell, Kentucky Republican, has warned Democrats that eliminating the filibuster would result in a “scorched-earth Senate.” He said Wednesday that he resisted pressure from President Donald Trump numerous times to eliminate the filibuster when Republicans held the majority in the Senate.
“The essence of the Senate is the filibuster on [legislation],” Mr. McConnell said. “Change that, and you change the Senate and America forever.”
He said of Mr. Manchin and Ms. Sinema, “we’re counting on them to stand up for the institution.”
As an intermediate step, Senate Democrats are readying a rule change that would require a filibuster to work more like the Hollywood version — an endurance test in which the objecting party must keep talking to hold the Senate floor and block action. Sen. Jeff Merkley, Oregon Democrat, has been leading the effort to develop that proposal.
“There’s a tremendous sense in the [Democratic] caucus that Mitch McConnell has profoundly abused the 60-vote motion to close debate,” Mr. Merkley told reporters recently. He said when Sen. Harry Reid of Nevada was majority leader, Mr. McConnell blocked legislation more than 400 times in six years, “bringing this place to a standstill that prevents it from addressing problems facing America.”
“We were elected to address those issues, so we’re going to figure out how to do that,” Mr. Merkley said.
Sen. Mazie Hirono, Hawaii Democrat, cited legislation on climate change, policing reform and election laws as priorities that could pass the Senate only if the filibuster is eliminated.
“I feel a sense of urgency that we should get as much done in the next few years as we can,” she said Wednesday. “Because Mitch Mcconnell’s goal in life is to take back the Senate.”
Other options that Democrats have floated include lowering the 60-vote threshold to 55, or eliminating the filibuster only for election-related bills.
Senate Democrats do not have an ally in President Biden in this battle. The White House said this week that Mr. Biden, who served 36 years in the Senate, prefers for the filibuster not to be eliminated.
The filibuster has not always been a part of the Senate. The rules did not provide for a way to end debate and force a vote on a measure until 1917, when the Senate approved a rule to allow a two-thirds majority to end a filibuster, a procedure known as “cloture.”
In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths (60) of the 100-member Senate, according to the chamber’s web site. The record for the longest individual filibuster belongs to South Carolina’s Strom Thurmond, who spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957.
The image of a marathon “talking filibuster,” often portrayed that way in movies and TV shows, has become a rarity. Senators can waive that practice, and can block a bill simply by requesting that it receive 60 votes to move forward.
Republicans have warned that eliminating the filibuster now would come back to bite Democrats when they lose their majority.
“You’ve got to believe that Democrats realize that, at some point, the table is going to turn,” Sen. Bill Hagerty, Tennessee Republican, said on Fox Business Network on Wednesday. “Do [Democrats] want to be on the other end of this? I think not. They’re going to have to think long and hard before they do further damage to the process here. And I think the filibuster will stand. Sen. Sinema [and] Sen. Manchin have both been clear that they do not want to see the filibuster taken apart … We’ve got to maintain the filibuster if we want any sense of bipartisanship here in America.”
Said Mr. McConnell, “Majorities come and majorities go. How would [Democrats] feel about a Republican Senate, operating with a 51-vote majority, deciding that we need to have a national ‘right-to-work’ law? That is among a number of things that they would seriously object to.”
Mr. Hagerty pointed to the looming voting-rights bill, H.R. 1, as a prime test, calling the measure “a power grab by the Democrats” that takes election authority away from state legislatures.
“It depends on whether the filibuster is abided by or not,” he said of the bill’s fate in the Senate. “I certainly don’t think you’ll see 10 Republicans move over to the side of H.R.1. I don’t think you’ll see a single Republican move in that direction.”
Some Democrats say the party’s majority is at stake in the debate over the filibuster.
Rep. Pramila Jayapal, Washington Democrat and Chairwoman of the Congressional Progressive Caucus, said it’s especially true after Democrats lost their bid to increase the minimum wage to $15 in the $1.9 trillion pandemic relief package.
“Democrats — the White House, the Senate and the House — have to recognize that then we’re going to have to reform the filibuster, because we have to be able to deliver,” she told reporters recently. “We had Black, brown, indigenous, working poor people who came out and voted for us. And now we have to show that it’s going to make a difference that we’re not going to get caught up in the tyranny of the minority that exists in the Senate.”
More than 40 groups in Arizona recently circulated an open letter urging Ms. Sinema to reverse her support of the filibuster. They specifically cited the election bill as a key reason for her to change her mind on the rule. But colleagues have described Ms. Sinema as even more set against changing the filibuster than is Mr. Manchin.