To begin with, let's review a basic fact: the Senate filibuster was not created by the drafters of the United States Constitution. The filibuster is not actually mentioned (either by name or in any other way) in the Constitution itself. The Constitution merely states that each chamber of Congress "may determine the rules of its proceedings" -- that's it. The filibuster is merely one of those rules; one that has evolved over time. In my lifetime, the filibuster changed from requiring a two-thirds majority vote (67) to only three-fifths (60). Nothing is sacred about either one of those ratios (and I leave it for others to point out, on the grim centennial anniversary of the Tulsa Race Massacre, the historical importance of the term "three-fifths" in the Constitution's original language). But the fact that it already has been recently changed shows that the filibuster rule is subject at any time to any changes that a majority of the Senate agrees upon. No constitutional amendment was necessary to make this change back in the 1970s, as it is merely a Senate rule. So a simple vote changed it.
We as a country are now closer to a major reform of the filibuster rule than we have been since that last big change happened. However, there are Democratic holdouts who are pretty adamant about their opposition to eliminating the filibuster altogether for legislation (it has already been eliminated for confirming judicial and other presidential appointments, up to and including Supreme Court justices, much more recently). So outright elimination may not be in the cards yet, at least not with the current makeup of the Senate.
But complete abolishment is not the only choice on the table. There are some who favor ideological revisions, such as: no filibuster would be allowed if the bill under consideration dealt with constitutional rights (like the right to vote). Already filibusters cannot be used to halt budgetary matters (although there are still plenty of hoops to jump through for any bill that attempts to use the budget reconciliation route). So this would merely add another category of legislation that would be free of the 60-vote filibuster requirement.
Some suggest either lowering the filibuster threshold (to 55, perhaps), or instituting a gradually-decreasing limit (60 on the first vote, 58 on the second, all the way down to eventually allowing a simple majority to prevail). But there are two other proposals that became rather relevant last week, when the Republicans launched their first filibuster of this congressional season.
The vote to approve a commission to investigate the January sixth insurrection was 54-35. You'll notice that this leaves 11 senators unaccounted for. This was due to the timing of the vote. Originally the vote was planned for Thursday evening, which would have left plenty of time for all the senators to leave for the upcoming holiday weekend. To most Americans, a holiday weekend equates to: "we get Monday off," but for congressfolk it means: "We'll leave Thursday night and then take the entire next week off -- heck, we might even take two weeks off!" Sadly, this is not an exaggeration, and eating into this valuable extended vacation time is always a potent threat for any congressional leader.
On Thursday, a bill which was supposed to have actual bipartisan support (an industrial policy measure targeting China) mysteriously stalled. So the insurrection commission vote was pushed back. Eventually, Majority Leader Chuck Schumer just gave up and announced there would be a vote on the commission the next day. The China bill was sidelined until after the break, and on Friday they held the commission vote. But 11 senators had already left early. This included two Democrats, but was mostly Republicans flying home and abdicating their responsibilities as legislators.
The filibuster rule, as written, forces the "yea" votes to total three-fifths of the total number of senators. If a bill can't get 60 votes, it can't advance, no matter how many senators are actually present. But there are two other ways that this rule could be written, both of which would preserve the three-fifths ratio.
The rule could flip the onus on its head and require instead that "two-fifths-plus-one" votes are required or else the bill will automatically advance to a floor vote. This would mean that 41 "nay" votes would be necessary -- at any time -- to stop the legislation from proceeding.
Or the rule could be re-written as: "two-thirds of those senators present in the chamber." Why should shirkers or truants count towards the ratio, after all?
In both cases, with all else being equal, the insurrection commission bill would have passed.
It only received 35 votes against -- six fewer than necessary. So under that reform, it would have moved to the floor. And three-fifths of 89 is 53.4 votes. No matter which way you round that, 54 votes would have sufficed. And that doesn't even count the three senators who were absent but stated that they would have voted for the commission (if all had been present, the vote would have been 57-43, to put it another way). The 54 who were present and voted for it would have been enough on their own.
You'll note that both of these reforms depend entirely on who is in the room when the vote is called. But that's the way it now stands, except that the burden now falls upon those wishing to advance the bill. If there are 41 senators opposed, then they don't even have to show up and cast their vote -- the measure will fail with only 59 votes no matter who else is present in the room at the time.
But why should it? Why should the burden be on those wishing to advance the bill? The filibuster, after all, is a tactic designed to halt a vote from taking place. So the burden really should be on those who are opposed, not in favor.
Reforming the filibuster rule in such a fashion might invite mischief, of course. But one could argue the filibuster rule itself is the root of such mischief, since in America the majority is supposed to rule. Why should a bill require a supermajority just to advance to the floor, when once it does advance only a simple majority is required to pass it? This is sort of an open secret that is swept under the rug by too many lazy political reporters (who use language like: "of course, a 60-vote majority is necessary to pass any legislation, these days"). This is not strictly true (although writers who use it would argue it is practically true -- de facto rather than de jure). But technically a 60-vote majority is not required to pass a bill. All legislation can still pass with only 51 votes. The filibuster vote is merely a hurdle to be overcome on the road to that vote even happening.
Reforming the rules to apply the three-fifths majority to those present or requiring the "nay" votes to muster 41 at any given time might just lead to the exploitation of situations exactly like last week's -- a canny majority leader would just allow debate to stretch far into the night until senators on the other side of the aisle gave up through exhaustion and enough of them went to sleep in their offices. Or flew home for the long holiday break. But that is precisely what the filibuster is theoretically supposed to do -- require lots of stamina from those opposed to the bill. Senators are not forced to give 24-hour-long speeches anymore (the Mister Smith Goes To Washington filibuster of yore), but they should still be required to prove their mettle in other ways. Requiring 41 of them to be present until the session is adjourned seems like a great way to do that. Especially when you consider the advanced age of the average senator.
Either way -- through requiring 41 "nay" votes to be present or by applying the three-fifths ratio to the total of those present -- would have meant the "1/6 Commission" would now be reality and the squabbling would have begun over who would be named to it.
These two fixes (either one of them, really) would be only modest reforms of the filibuster rule. As such, they might be deemed acceptable to Senators Joe Manchin, Kyrsten Sinema, and any other Democrats quietly opposed to outright elimination of the legislative filibuster. After all, the three-fifths ratio would be preserved. It would just be applied differently, in practical terms.
This reform wouldn't allow President Joe Biden's entire agenda to advance willy-nilly, either -- which might be the biggest selling point for Manchin, Sinema, and anyone else. Such reforms would not mean that big agenda items such as raising the minimum wage to $15 an hour or passing voting rights reforms could automatically move to the final vote. It's hard to see any Republicans voting for either of these measures, and these are just the two which first popped into my mind. So these reforms might not be enough, in the end.
But maybe -- just maybe -- they'd be a serious shot across the bow of the Republican Party. "Look, we're going to take a baby step first, but if that doesn't improve the situation enough, we may well eliminate the filibuster altogether," would be the Democrats' warning message.
Even the possibility of that being enough certainly seems worth taking that shot.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
