The pivotal debate in U.S. politics: A rule change that would change everything for Biden

It's the hottest debate in U.S. politics — one potential rule change that could change everything when it comes to passing laws in Congress. The Senate's filibuster rule has created a graveyard of bills over the years. Democrats could now be on the cusp of reforming it to save Joe Biden's agenda.

Senate filibuster rule has created a graveyard of bills over the years. The Democrats might alter it

U.S. President Joe Biden entered office on Jan. 20 with big legislative ambitions. Whether they happen will hinge, to a great extent, on a procedural debate now happening in the Democratic Party. ( Andrew Harnik/Reuters)

American lawmakers are in the throes of a heated debate about one fundamental rule change that would shift so much of the country's politics.

What happens next to the Senate's decades-old filibuster rule could not only decide Joe Biden's presidential legacy but the fate of a slew of bills that have been stalled for years.

It's the rule that requires 60 per cent of senators to agree to even hold a vote on a bill, making it a silent legislative killer over the years that has created a graveyard of bills.

Gun control, climate change, immigration reform, electoral reform, statehood for Washington, D.C., Medicare access — bills addressing all these issues could hinge on one procedural choice.

Democrats now face a career-defining dilemma while they hold the rare trifecta of power: control of the White House, Senate and House of Representatives.

Washington, D.C., Mayor Muriel Bowser testified at a day-long congressional hearing this week on the question of statehood for the capital. It's not happening with the filibuster rule in place. (Carlos Barria/Reuters)

Will they preserve the Senate's filibuster tradition, or gut it in the hope of passing big bills between now and next year's congressional elections?

"It's ridiculous," said Brian Higgins, a Democrat in the House who wants the filibuster gone. In the interview, he also used stronger, less-printable language to describe the rule. 

"What Republicans want to do is make this administration fail. So they're not going to co-operate on anything.… Democrats have to learn a lesson here. And the lesson is: Do big things."

This debate that will shape all other debates in U.S. politics is playing out inside the Democratic Party, and it could come to a head within weeks.

Most Democrats agree with Higgins. And there's mounting peer pressure on the few who don't. One idea gaining steam among the holdouts is to keep the filibuster but to weaken it, or limit when it can be used.

Making that change would require every single Democrat to vote together and use their party's one-vote majority to force the so-called nuclear option in amending chamber procedures.

Big decision will shape key bills

The stakes of this decision have been glaringly obvious these past few days. Democrats are working on bills that, without procedural change, risk going nowhere.

Under the Senate math, Democrats would need 10 Republicans to reach the magic 60-vote mark required to pass just about anything (aside from annual, short-term spending bills).

Biden announced his plan for green infrastructure in this campaign speech last September. It faces tall odds in the Senate under the current rules. (Leah Millis/Reuters)

On Monday, a House committee spent the day discussing a law to make Washington, D.C., the 51st state — but, for now, D.C. statehood is DOA.

On Tuesday, the Senate held a gun-control hearing. This is likely a doomed exercise, based on how few Republican votes there were after the Sandy Hook school massacre for a moderate background-check bill in 2013.

Similarly tall odds face immigration bills passed by the House, and political reforms that include an overhaul of political financing and voter registration.

Ditto climate change. Democrats plan to introduce a $2-trillion infrastructure bill that would spend heavily on green technology, which Republicans oppose

How we got here

So, how did the U.S. Senate wind up with this rule? 

The truth is a bit more muddled than it's made out to be — by detractors who call the filibuster a recent aberration, and by defenders who call it a critical feature of American governance. 

In fact, even trained historians who sit in the U.S. Congress offer different takeaways.

One Harvard-educated student of American politics and former history teacher, Higgins, detests the filibuster.

Another Harvard-educated historian, Republican Sen. Ben Sasse, vigorously defended it this week and warned that ditching the filibuster would have devastating effects. 

The issue even divides historians who sit in Congress. This one, Republican Sen. Ben Sasse, says ending the filibuster would be a terrible turn in American politics. (Drew Angerer/Reuters)

Sasse said it would make American politics even angrier — instilling a winner-take-all mentality, closer to a parliamentary system than to the consensus-based chamber designed by America's republican founders.

"It'll be the end of the Senate," Sasse said. "[We'd] be committing institutional suicide." 

From its very creation, the engine of American lawmaking, the U.S. Congress, was built with a gas pedal (the House) and brake pad (the Senate).

The Senate is supposed to be slower, more deliberative, with members elected every six years, isolating them more from the political passions of the moment — compared to the House and its two-year terms, with members constantly in campaign mode.

The two chambers were pushed further down divergent paths early in the country's history. 

Arizona Sen. Kyrsten Sinema is one of two key Democrats to watch. She and Joe Manchin are rare defenders of the filibuster in their party. (Erin Scott/Reuters)

The Senate eliminated a British-based parliamentary rule that allowed a topic to be revisited, called the previous question rule. 

That rule evolved in the places where it continued to exist, such as Canada and the U.S. House, becoming a tool for calling a topic for a vote.

The Senate was left without a similar means to end a debate.

That made it possible to delay votes indefinitely, and in 1917, a frustrated President Woodrow Wilson, eager to arm U.S. merchant ships during the First World War, disparaged senators as a little group of wilful men who rendered the U.S. government helpless and embarrassing.

At his urging, the Senate created a rule to cut off debate, the cloture motion, with a two-thirds majority.

This system was strained to a breaking point decades later by civil rights debates.

The current filibuster rule was an attempt to stop long speeches that monopolized the Senate calendar, a tactic developed to block civil rights legislation by segregationists like Strom Thurmond. (Mike Theiler-Files/Reuters)

Southern segregationists stalled civil rights bills with interminable speeches. Strom Thurmond took steam baths to dry out his body so he wouldn't have to go to the washroom during a 24-hour speech in which he killed time by reading the phone book.

A changing Democratic Party, with scores of younger members elected in the post-Watergate 1974 midterms, vowed to clamp down on long speeches, which, having earlier delayed civil rights, were more recently stalling other progressive bills such as the creation of a new consumer protection agency.

Walter Mondale, a future vice-president, led the reform.

Walter Mondale played a key role in adjusting the Senate filibuster rules in 1975. Here the senator is seen during the 1976 election, which made him vice-president. (Getty Images)

He warned that faith in government was plummeting and lawmakers needed to prove they could still respond to the voters' will.

"The threat of the filibuster … hangs over this body like a heavy cloud," Mondale said.

"[It's] repeatedly used to block, delay, or compromise important social, economic, and governmental reform legislation favoured by an overwhelming majority."

After weeks of impassioned debate, on March 7, 1975, the U.S. Senate passed the current rule: Out was the 67 per cent requirement, lowered to 60 per cent.

It created a new compromise: Most bills are now automatically blocked unless they get 60 votes, so there's no need for hours-long speeches clogging up the chamber.

And that's where things stand today.

Opinions were split from the start. Even on the pages of the New York Times, one editorial called the change a pathetic compromise that didn't go far enough. 

But one of the paper's most famous columnists offered a mournful lamentation of the destruction of the Senate's intended spirit.

Arguments for and against

One of the southern Democrats who fought hardest against the reform, James Allen of Alabama, delivered multiple speeches, sucking down cherry-flavoured glucose for energy. 

He warned this was one step toward the eventual abolition of the filibuster.

"It is like cutting off a dog's tail an inch at a time," Allen said, warning that the 60-vote requirement would someday be eroded to a 51-vote majority rule.

He was prescient there: the filibuster has eroded.

Progressives are parsing this man's words. Joe Manchin of West Virginia, the other key Democratic senator to watch, is dead-set on keeping the filibuster. But he's open to changing it. ( Jim Watson/Reuters)

Democrats dropped the filibuster rule for cabinet and low-level judicial confirmations in 2013, frustrated by stall tactics from Republican Minority Leader Mitch McConnell.

McConnell returned the favour when he gained the majority and ended the filibuster for Supreme Court justices in 2017.

All that's left to the filibuster is the biggest remaining piece: legislation. 

If the Democrats go down that route, McConnell has threatened to paralyze the chamber with tactics never before imagined.

Wielding reform as a threat against the GOP

Many Democrats want to call what they see as a bluff.

One reason progressives are keen to test McConnell's threat is they're convinced their priorities will win public support.

But there's a broader argument about the basic structure of modern American politics.

Their argument is that partisan voting blocs are an essential fact of life now. Even if the founders never intended for the U.S. to have political parties, they exist now, elections are almost always close, and it's increasingly impossible to get anything important done.

It's been almost a half-century since a single election gave one party control of the White House, the House, and 60 Senate seats.

So progressives are now parsing every utterance from their party's remaining filibuster-defenders, upon whose votes a rule change hinges: the key ones are Kyrsten Sinema of Arizona and Joe Manchin of West Virginia.

Don't expect the elimination of the filibuster. But some reform sounds possible.

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Manchin says he won't budge on the 60-vote requirement, but he has said he's open to making the filibuster harder — "more painful" — to use.

That puts him in line with President Joe Biden.

The longtime senator has defended the tradition but wants to do away with the automatic filibuster introduced in 1975, and force obstructionists to stand up and talk.

In the meantime, the mere threat of reform is being wielded as leverage. One filibuster defender, Sen. Angus King of Maine, writes that he'll make a decision based on how McConnell behaves on other bills.

In a Washington Post op-ed, the senator, an Independent who mostly votes with Democrats, concluded with the implicit threat: "Over to you, Mitch." 


Alexander Panetta is a Washington-based correspondent for CBC News who has covered American politics and Canada-U.S. issues since 2013. He previously worked in Ottawa, Quebec City and internationally, reporting on politics, conflict, disaster and the Montreal Expos.