For President Biden to succeed, the Democrats must find a way to limit the Republicans’ use of the filibuster, the procedural weapon in the Senate that requires 60 votes to advance legislation to a vote and threatens to leave the new president’s agenda in purgatory.
On Monday, the newly demoted Senate minority leader, Mitch McConnell of Kentucky, relented on his demand that Senate Democrats preserve the filibuster, and he agreed to move ahead with discussions on a power-sharing agreement. But the filibuster still lives: At least two Democrats have said they oppose ending it, enough to frustrate any effort by Democrats to do so by a majority vote in the 50-50 Senate.
So long as Mr. McConnell holds those two cards, any Democratic threat to end the filibuster altogether — the so-called nuclear option — is doomed. This leaves Mr. McConnell with a potential veto over most of the Biden legislative agenda.
But what if a genuine compromise were possible that preserved the Senate filibuster as a protection of individual conscience while giving President Biden a fair shot at enacting a desperately needed Covid-19 relief package? Such a compromise exists, we believe, by restoring the original “speaking filibuster,” made famous by Jimmy Stewart in “Mr. Smith Goes to Washington,” in place of the modern version.
In the beginning, from 1789 to 1806, debate in the Senate could be ended at any time by majority vote. In 1806, the Senate abolished that rule, leaving no way to cut off debate. This decision gave birth to the filibuster to delay or block legislative action. This involved a senator holding the floor continuously, as Mr. Smith did (not easy), or to act in carefully choreographed relays with like-minded colleagues (also not easy) and prevent a vote on the merits.
Still, a few successful filibusters were maintained, most notoriously to block anti-lynching and other civil rights legislation, but only when opposition was so passionate that senators were willing to endure the physical and logistical rigors of seizing the Senate floor and refusing to let go. In 1917, opponents of the United States’ entry into World War I were able to sustain such a speaking filibuster, blocking widely supported legislation that would have enabled merchant vessels to arm themselves. An angry Senate reacted by adopting formal rules that allowed an end to debate by a vote by two-thirds of the senators present on the floor.
From 1917 to 1975, with tweaks in 1949 and 1959, the Senate operated under the two-thirds rule, but the real constraints on filibustering were three self-limiting aspects of the 1917 rule. First, a motion to end debate (known as cloture) froze the Senate, forcing the body to vote on the motion before proceeding with any other business. Second, maintaining a speaking filibuster required a senator to hold the floor, individually or in relays. Third, supporters of the filibuster needed more than one-third of the Senate as allies to be present on the Senate floor to head off a surprise cloture vote. Once again, if opposition was passionate enough, successful filibusters were maintained, especially of civil rights legislation, but the difficulties of mounting a filibuster placed a lid on the number of times one could be successfully sustained.
Beginning in 1975, though, the original speaking filibuster was transformed into the modern version. First, Southern senators agreed to confine the filibuster to a short period in the morning session, allowing the Senate to move on to other business in the afternoon. Then they agreed to a reduction of the cloture number to a fixed 60 votes, from two-thirds present and voting, or 67 votes if the entire Senate was present.
All of a sudden, the self-limiting factors that had kept the filibuster in check since 1806 disappeared. There was no longer an institutional cost since the Senate could conduct business as usual during most of the day. A filibustering senator no longer had to hold the floor speaking for long periods of time. And most important, supporters of the filibuster no longer had to worry about being in the Senate chamber because it was the job of opponents to marshal the fixed 60 votes to end debate. Supporters of the filibuster could stay home in bed.
The result was an explosion in the number of filibusters, changing a relatively rare device to protect the conscience of the minority on a few deeply felt issues to a de facto supermajority rule requiring proponents of virtually all legislation to secure 60 affirmative Senate votes before it can be passed.
The filibuster has already been abolished for Supreme Court confirmations, executive branch appointments and lower federal court nominations. If a filibuster must exist in the Senate, let it be the original “speaking” version that protects the conscience of the minority without turning the Senate into a super-majoritarian body. Hopefully all Democrats can agree to this reform. It would go a long way to allowing Mr. Biden’s legislative agenda to succeed.