How Joe Manchin can make the filibuster “more painful” for the GOP without eliminating it

“In 1805, fresh off the duel where he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the body’s rules by eliminating something called the “previous question motion,” a process that was rarely invoked in the early years of the Senate.

As Sarah Binder, a Brookings Institution expert on Congress and a professor at George Washington University, explained in 2010 testimony to the Senate Rules Committee, Burr’s intent was to produce a “cleaner rule book” that wasn’t too thick with duplicative procedures. And he thought the previous question motion was the kind of superfluous rule that could be eliminated.

Unfortunately for the nation, the previous question motion wasn’t the least bit superfluous. This motion turned out to be the only way to force the Senate to move off a particular topic. When the Senate took up Burr on his call, it allowed senators to lock the Senate into endless, pointless debate — halting progress even if a majority of the Senate wished to move forward to a vote.

The filibuster was born.

Since then, the rules permitting filibusters have been changed many times — and with increasing frequency.

In 1917, President Woodrow Wilson successfully urged the Senate to create a process, known as “cloture,” which would allow a two-thirds majority of the Senate to break a filibuster and bring a matter to the Senate for a final vote. The number of votes necessary to end a filibuster, whether on a piece of legislation or on a confirmation vote, was reduced to three-fifths of the Senate (ordinarily 60 votes ) in 1975.

In the 1970s, Congress created a process known as “budget reconciliation,” which allows many taxing and spending bills to become law with a simple majority vote, bypassing the filibuster. In 1996, Congress enacted the Congressional Review Act, which allows Congress to overturn recent federal agency regulations without having to deal with the filibuster.

And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.

Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.”

“there are four broad ways that senators can weaken the filibuster without eliminating it altogether.”

“Make fewer bills subject to the filibuster”

“Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.”

“Make it easier to break a filibuster”

“Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.”

‘The Democratic version of John McCain’

“These days, Manchin couldn’t be in a better spot. His ally Chuck Schumer is now majority leader and Joe Biden is president after running as a uniter. They need his support on just about everything, and Manchin has spoken to Biden several times in the past week alone.”

“Compared to most Democrats, Manchin is a fiscal conservative, often votes with the GOP on abortion legislation but has tried to cut deals on everything from immigration to gun background checks. He’s found more success lately on coronavirus aid than past endeavors, and is already pushing Biden’s package in a more moderate direction.
The Senate is already taking cues from Manchin, approving his amendment with Sen. Susan Collins (R-Maine) 99-1. Manchin famously endorsed Collins in her 2020 battle for reelection, which burnished both of their bipartisan credentials.”

“perhaps the most important major issue where Manchin will side with the GOP is on the minimum wage. He simply seems immovable on his opposition to a $15 national hourly rate.

“I would amend it to $11. You know that. Because I think that’s basically a base that we should have in America right now,” Manchin said, explaining that he would raise the wage up from $7.25 over two years. “It gets people who work 40 hours at least over the poverty guidelines. The states that have $15, already have it. That’s great.””