Senator Joe Manchin, stout defender of the filibuster, got filibuster opponents excited on Sunday. The West Virginian said the tactic “really should be painful and we’ve made it more comfortable over the years.” While the pivotal Democrat still insisted he would never get rid of the filibuster, he said the Senate could “make it a little bit more painful, make him stand there and talk.”
Some Democrats, most notably Senator Jeff Merkley, have long promoted changing the rules to require filibusterers to do it old-school, Mr. Smith Goes to Washington-style. In 1970, in order to take away the power of filibusterers—who at that point were mainly segregationists—to gum up the works, the Senate changed the rules to allow other business to occur on the floor during filibusters. As a result, the Senate created a new “stealth” filibuster which over time Senate minorities have used more and more freely, especially under Mitch McConnell who dramatically increased the frequency of obstruction.
Back in 2011, Merkley proposed a new rule in which if “no Senator is recognized, no Senator seeks recognition” to speak on the floor, the Senate can “proceed immediately to vote.” In fact, Manchin co-sponsored this rule change, which was brought to the floor and failed on a 46-49 vote.
Advocates believe by restoring the classic talking filibuster, a Senate minority would then use the filibuster more sparingly, because of the exhausting effort involved, and because throttling the Senate under the glare of the cameras to oppose popular legislation is electorally dangerous.
But Manchin did not say on Sunday if he would ever enact a talking filibuster rule by using the “nuclear option” maneuver, in which the Senate’s presiding officer ignores the 2/3 cloture vote ostensibly needed before votes on rule changes, allowing the rule to be approved by simple majority. (In 2011, Merkley and Manchin did not pursue the nuclear option; they tried to win 2/3 support.) It’s a Catch-22. You can’t scale back this onerous supermajority procedure if you’re unwilling to circumvent a different, onerous supermajority procedure.
Whether or not Manchin is willing to take that step is highly important. Since 2013, the nuclear option has been deployed three times. Manchin is the only Senator to have voted against it each time.
The reason the maneuver is considered “nuclear” is because by changing rules on a narrow partisan basis, the character of the Senate permanently changes. No longer is it a body that requires supermajorities to take most actions, “cooling” the immediate passions of the House. Even if a future Senate wanted to restore a 60-vote standard for most business, everyone would know that one determined party could push the nuclear button again at any time, and bring the threshold back down to 50.
Hovering over the debate is the fact that the nuclear option has been deployed, three times. But so far, that button only has been pushed in regards to presidential nominees, not legislation. On that ground, Manchin has been trying to hold the line.
As Manchin has been quite proud of his distinction as the only senator to consistently oppose the nuclear option, for him to nuke now would be a shock. In 2019 he posted on Twitter that the nuclear option is “a betrayal of the people we represent.” Why would he go nuclear and risk the filibuster in an effort to reform and save the filibuster?
Consider this scenario: the nuclear option is used to install the talking filibuster rule—and it doesn’t work. Grandstanding Republicans are undeterred. In a polarized country, Republicans can gleefully filibuster in broad daylight (and dark of night), reading Dr. Seuss books on the Senate floor while fattening their campaign coffers with fundraising emails while they C-SPAN the night away. Putting a camera in front of Ted Cruz for 24 hours feels less like a punishment than his idea of bliss. Plus, during every filibuster, nothing else can happen on the Senate floor. No bills. No judges. Literally everything stops. What would frustrated Democrats do? As soon as they had the votes, drop another nuclear bomb and kill the filibuster for good.
Similarly, as soon as Republicans had control of the presidency and White House, the first chance they had to get rid of the filibuster, they would. In 2013, Democrats went nuclear to end the filibuster for lower court nominees. Then in 2017, Republicans relied on that precedent to expand the exemption to Supreme Court nominees. If Democrats go halfway on curtailing the legislative filibuster, count on Republicans to finish the job once it suits their purposes.
If you want the filibuster dead, neither scenario is troubling. But to take Manchin at his word, he doesn’t want it dead.
Now some Democrats believe Manchin, and his fellow filibuster supporter Senator Kyrsten Sinema can be eventually swayed. Senator Sheldon Whitehouse recently shared with Talking Points Memo his smashmouth legislative strategy for the Democrats’ prized voting rights bill: “You bring it to the floor a few times and let [Republicans] obstruct it. And you see what effect bad faith obstruction has on some of our members’ views about the filibuster.”
If such pressure makes Manchin a filibuster abolitionist, then he might nuke for filibuster reform. It’s the only way he can grievously wound the filibuster, without being accused of betraying his past statements that he would never kill the filibuster. His fingerprints wouldn’t be on the murder weapon.
But don’t expect to convince Manchin that using the nuclear option to pare back the filibuster won’t in fact eliminate the filibuster. There’s a reason why he hasn’t nuked before.