Democrats can’t pass their voting rights bills without bending or breaking the filibuster, which Senate Majority Leader Chuck Schumer says they will try to do by next week. Exactly how is not clear. According to Politico, “Democrats are oscillating between voting on a talking filibuster or a carveout for elections reform.” Why are they torn? “Some Democrats want to preserve significant sway for the minority and prefer a talking filibuster. That would still allow the minority to gum up the Senate for weeks, but senators would have to hold the floor to do so to stop a vote at a majority threshold. Others prefer the carveout, which would allow a quicker majority vote but pare back minority rights too much for some.”
This is an easy choice if you know two things. One, Democrats don’t have the votes to change the Senate’s rules by majority vote. Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona oppose such parliamentary hardball, with Sinema on Thursday forcefully declaring her support for keeping “the 60-vote threshold to pass legislation.” Two, Schumer can bring back the talking filibuster without any vote at all.
As I explained last year, the era of the talking filibuster didn’t end with a change in the Senate rule book. In 1970, out of frustration with talking filibusters chewing up floor time, then Senate Majority Leader Mike Mansfield, the Montana Democrat, began “double-tracking”: asking for unanimous consent to shelve a filibustered bill and proceeding to different legislation. With one track for filibustered bills and one for bills getting floor time, there was no need to strain a senator’s lungs to suffocate legislation. The era of the silent filibuster had begun.
But if Schumer wants to make filibusterers talk, all he need do is forget about the second track and leave the contested bill on the floor.
This happened in 1988. Like today, an election reform bill was at issue. The Democratic majority wanted to limit campaign spending. Republicans claimed that the bill advantaged incumbents, consigning them to permanent minority status. After the bill cleared the Senate Rules Committee in April 1987, Democrats tried to invoke cloture—to end floor debate and hold an up-or-down vote—seven times. Republicans repeatedly filibustered. An attempt at bipartisan negotiations failed in February 1988, and the Senate majority leader, West Virginia’s Robert Byrd, got fed up.
“There is no point in having a nice, easygoing filibuster here, carrying on a slow filibuster in the back rooms,” Byrd said on February 23 during the formal debate, before moving to a record eighth cloture vote. “Let us have it out here on the floor. That is where it ought to be, where the American people can see it … The American people need to know what it is about, and they need to know who is keeping the Senate from coming to a vote on this.”
The filibuster lasted until February 26. For a time, Republicans stalled by calling for a quorum, then denying a quorum by fleeing the Senate floor. Democrats countered by voting to have the fugitive senators arrested by the U.S. Capitol Police and ordered back to the floor. Oregon Republican Senator Bob Packwood was captured and carried back feet first.
(The procedural warfare did not sully the Senate’s clubby nature. Upon Packwood’s return, Byrd praised him “for the fine spirit in which he has accepted the inevitable … he has shown the finest of examples by his smile, his good humor, and I want to thank him for helping the Senate to get a quorum.” Packwood cheekily responded, “Might I say to my good friend I did not come fully voluntarily. The sergeant-at-arms and all of his stout men surrounded my office. Let me simply say I am transferring the colors to another ship and shall fight on in some other fashion.”)
Byrd’s gambit did not work in the end. Unfazed, Republicans blocked cloture for the eighth and final time.
So don’t get me wrong: I’m not arguing that the talking filibuster is going to fix all the Democrats’ problems. I’ve shared my concerns about the potential unintended consequences of the talking filibuster, which are illustrated by the 1988 example. Just because you make the minority talk doesn’t mean the minority will budge. And when the minority can clog the floor, no other Senate business can be accomplished—no legislation, no executive branch appointments, no judicial confirmations.
But right now, what is on the Democrats’ to-do list that’s so pressing? Build Back Better is stuck. Biden has 26 pending judicial nominations, but they can wait until the end of the year (so long as no Democratic senator dies from one of the nine states where the replacement could be a Republican). What better time to have a knock-down, drag-out?
Drama on the floor could even have a relatively happy ending for Democrats. No, they shouldn’t expect 10 Republicans to embrace the Freedom to Vote Act. But according to Punchbowl News, a bipartisan group of senators, several of whom negotiated the recent infrastructure law, are discussing an election reform bill focused on measures that address the grave threat of election subversion, including updating how the Electoral College count is ratified. A filibuster, grinding Senate business to a halt, could pressure the group to finalize an agreement. Democrats could claim that their insistence on a talking filibuster prompted the Senate to act; Republicans could brag that their filibuster forced Democrats to give up some of the most prized proposals, such as requiring states to offer no-excuse mail-in voting, two weeks of early voting, and same-day voter registration.
Not all Democrats would celebrate a compromise—Vice President Kamala Harris recently deemed a bill that only tightened up the Electoral College ratification process as “not a solution to the problem at hand.” But ending the floor fight with a bill that at least makes some progress beats ending it with no bill and another round of Democrats-in-disarray media coverage.
On January 3, Schumer wrote to his colleagues that “we as Senate Democrats must urge the public in a variety of different ways to impress upon their Senators the importance of acting and reforming the Senate rules if that becomes a perquisite [sic] for action to save our democracy.” Allow me to impress upon Senator Schumer that he has the power to revive the talking filibuster, and his best chance to save our democracy.