“”I believe that the threat to our democracy is so grave that we must find a way to pass these voting rights bills,” Biden said. “Debate them, vote, let the majority prevail. If that majority is blocked, then we have no choice but to change the Senate rules, including getting rid of the filibuster.”
Democrats hold the slimmest possible majority in the Senate, which is currently split 50–50 with Vice President Kamala Harris serving as a tiebreaker. But Senate Majority Leader Chuck Schumer (D–N.Y.) says he’s prepared to bring a pair of election bills to the floor in the coming weeks despite nearly unanimous Republican opposition. The Freedom to Vote Act would limit state-level efforts (led by Republicans) to restrict mail-in voting and absentee balloting, make Election Day a federal holiday, impose new rules for the redistricting process, and require more disclosures from political donors. The second bill, the John Lewis Voting Rights Advancement Act, would reimplement a portion of the 1965 Voting Rights Act that was invalidated by the U.S. Supreme Court in 2013.
On Tuesday, Biden positioned the two bills as a response to Republican efforts (in Georgia and elsewhere) to tighten election laws, and a necessary rejoinder to former President Donald Trump’s craven efforts (in Georgia and elsewhere) to influence the results of the 2020 election.
“That’s not America,” he said. “That’s what it looks like when they suppress the right to vote.”
Those Republican efforts to impose new rules on elections do indeed run the risk of corroding democracy, and Trump’s attempts to overturn the last presidential election were grotesque and condemnable. Even so, it’s not clear that the Democrats’ proposals make sense. If anything, greater federal control over elections might make it more likely that a future president could exercise undue influence over democratic proceedings.
But whether Democrats can pass those bills after suspending the filibuster might be a moot point because it doesn’t seem like there are 50 votes in the Senate for abolishing the filibuster in the first place.”
“Lawmakers voted 50-49 to raise the debt limit by $2.5 trillion, a figure that’s expected to tide the government over until after the midterm elections next fall. Every one to two years, it’s vital for the US to address the debt ceiling to cover past spending and make sure the government doesn’t default; if it did, it would likely have catastrophic economic consequences globally.
Interestingly, the resolution succeeded because it did not require 60 votes to clear a filibuster in the Senate after lawmakers passed a bill last Thursday granting a one-time exception to the rule.
The deal to suspend the filibuster was bipartisan; leaders of both parties have hesitated to make exceptions to the filibuster, a procedural rule requiring a Senate supermajority to pass legislation, if it gets blocked by the opposition. Senators were willing to make an exception in this case, for two reasons.
One, it enabled Democrats to approve the debt limit resolution on their own, with no Republican support. Republicans wanted to withhold their votes in hopes of weaponizing Democrats’ vote to raise the debt ceiling in future campaigns. Two, the deal allowed a vote to be held quickly, narrowly avoiding the December 15 default deadline calculated by Treasury Secretary Janet Yellen.
This last-minute deal enabled lawmakers to avert a debt default and massive economic crisis while overcoming a partisan impasse on the subject. For some Democrats, too, it revealed that exceptions to the filibuster are possible — and an option lawmakers should consider for other bills.”
“The debt ceiling vote has opened the door to questions of whether Democrats would consider filibuster exceptions for other bills, like voting rights protections. Activists, and some Democratic lawmakers, have called for this in recent months amid failures to advance voting rights protections, police reform, and a $15 minimum wage due to GOP opposition in the Senate. But a filibuster exemption for policy changes is likely to be difficult to secure.
This time around, Democrats were only able to get an exception because it was for something Republicans actually wanted. Though there was enough GOP opposition to raising the debt limit that getting 60 Senate votes was in doubt, Republican leaders like Senate Minority Leader Mitch McConnell did not want the US to default. Those leaders made sure the exception passed for the good of the domestic and global economy. Without Republican support, Democrats likely wouldn’t be able to approve another exception in this same way.
That leaves Democrats with another challenging option: banding together for a rules change. Those sorts of modifications can be done by majority vote. But that would require the support of all 50 Democratic caucus members, which party leaders don’t currently have. Moderate Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have staunchly opposed such changes thus far.
Still, this development has made it clear lawmakers do have another option to consider for bills that can’t pass via budget reconciliation, and has set a recent precedent for such carveouts. Now that it’s been done once, expect to hear calls to do it again. In fact, this filibuster carveout has sparked new conversation about how else this tactic could be used.”
“Democrats have a multi-pronged strategy for addressing drug prices in the Build Back Better Act. First, they would allow Medicare to negotiate with pharmaceutical manufacturers on the prices of a certain number of prescription drugs, something they have been promising to do for years. But Democrats also want to limit drug companies’ ability to hike the prices of their medications for everyone — regardless of what kind of health insurance they have — in the future.
To do that, Congress has proposed requiring drugmakers to pay rebates for any price increases, in either the Medicare health program or the commercial health plans that cover 180 million Americans.
But, as Politico reported this week, the plan to apply the inflation-indexed rebates to the commercial market could be in trouble.
Senate Republicans — at the urging of the drug industry — plan to challenge whether the rebates for commercial health plans are permissible in a bill passed through the budget reconciliation process.”
“the Byrd Rule requires that all the provisions in a budget reconciliation bill directly change federal spending or revenue.
Republicans will argue that the purpose of the provision is to control drug prices for the private plans, full stop, and that does not have anything to do with federal spending or revenue — at least not directly.
The Democratic counterargument would be that applying these rebates to commercial plans would have a serious, more than incidental, effect on the federal budget. The federal government subsidizes almost all private insurance plans in one way or another, and so lower or higher costs for those plans could have major implications and lower costs for private health plans could also mean higher wages for workers, who would then pay more in taxes.
Who wins is likely ultimately a decision for the Senate parliamentarian.”
“what would happen if the parliamentarian determines rebates covering commercial plans cannot be allowed under the Byrd Rule?
The big fear, voiced by advocates of the Democrats’ plan, is that drug companies would extract higher prices from the commercial market in order to make up for the revenue they would lose from Medicare once that program’s new price controls take effect.
According to several experts, that appears unlikely. Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy, covered why in a lengthy analysis published in September.
“Fundamentally, for this to occur, it would have to be the case that drug companies are benevolently choosing not to profit-maximize at present,” Adler told me this week, “which I find rather difficult to believe.””
“Under the current plan, drugmakers would pay a rebate based on their sales volume in both the Medicare and commercial markets. In that scenario, there would be little reason to raise list prices faster than inflation, because you are paying the penalty based on the entire market.
But if those rebates can’t include the commercial market, the penalty will be based on the Medicare market only — making it a smaller price to pay if a company does decide to hike the list price of a drug at a rate higher than inflation.”
“While the filibuster’s origins in the early American republic have little to do with race, the practice has changed substantially over time. And the modern version, created in 1917, really does have a racist history.
“You start to see civil rights bills pass the House in the 1920s, and it was consistently used to block them,””
““If there was any ambiguity in the antebellum era, it certainly shed that during the Jim Crow era — where it was widely taken for granted that the filibuster was directly tied to [blocking] civil rights.””
“One of the most fundamental justifications for the filibuster offered by McConnell and conservative thinkers is that the practice protects minority rights, preventing the Senate majority from running roughshod over its political opponents.
The Jim Crow history of the filibuster shows that this defense relies on a philosophically impoverished notion of what “minority rights” means. It misunderstands what kinds of minorities need protecting in a democracy, and from whom.”
“the filibuster allows people who already have power to prevent changes to the political system. On civil rights issues, this effect almost always tends to redound to the benefit of people who want to preserve the racial status quo. There’s a reason why late 20th century liberals and groups like the NAACP repeatedly called for filibuster reform or abolition: They knew it would always stand in the way of fundamental system reforms.
“It is not a coincidence that the tool that blocks civil rights continues to be the tool that blocks progressive change today,” Jentleson says. “Even after the civil rights era, as the filibuster started to be used by both parties, it still consistently favored the party of established corporate power and the entrenched status quo.”
Right now, state-level Republicans are pursuing a series of bills disproportionately likely to disenfranchise nonwhite voters, an effort that the Brennan Center’s president Michael Waldman calls “the most significant attempted cutback of voting rights since the Jim Crow era.” Senate Republicans are protecting this offensive, blocking federal legislation like HR 1 and the John Lewis Voting Rights Act that could militate fair elections at the state level.
One could imagine all 50 Democrats voting for some version of these bills. So long as the filibuster remains intact, state-level Republicans are free to infringe on the rights of actually vulnerable minorities to their heart’s content.
This is the modern filibuster working as it always has.”
“under a “talking filibuster,” any “member of the minority party can filibuster as long as he/she stays put on the floor.” But once a member finishes speaking, the filibuster would end, and “there’d be a vote at a simple majority threshold” of 50 votes, instead of the existing 60-vote threshold required to end a filibuster.
That’s a big change, because there’s currently no actual filibustering required to filibuster in the Senate, at least not in the conventional sense. As Vox explained back in 2015, the modern filibuster doesn’t require a senator talking on the floor for hours on end to delay a bill.
Instead, today’s filibuster is a straightforward move to reject unanimous consent on a bill that the minority can wield painlessly”
“Here’s the Democratic nightmare: Biden and congressional Democrats pass a few major bills over the next two years but leave the filibuster in place, preventing the passage of major reforms to America’s electoral system. A federal judiciary stacked with Trump appointees strikes down all or parts of many of the laws the Democrats do pass as well as many of Biden’s executive actions, leaving Democrats few permanent policy victories and driving down the president’s approval ratings.
Meanwhile, Republicans use their control of most state legislatures to draw state legislative and U.S. House district lines in ways that are even more favorable to the GOP than the current ones and enact laws that make it harder for liberal-leaning voting blocs to cast ballots. Combine gerrymandering, voting limitations, lackluster poll numbers for Biden and the historic trend of voters rejecting the party of the incumbent president in a midterm election, and it results in the Republicans winning control of the House and the Senate and making even more gains at the state legislative level in November 2022.
Post-2022, Republicans in Congress block everything Biden tries to do, further driving down his approval ratings. Meanwhile, Republicans use their enhanced power at the state level to continue to adopt laws that make it harder for people in liberal-leaning constituencies to vote and harder for Democrats to win in swing states. Then, these laws are upheld by lower courts and a U.S. Supreme Court still packed with Trump appointees. In 2024, Biden (or whomever the Democrats nominate) wins the popular vote but still loses the Electoral College — in part because Republicans have limited Democratic votes in some swing states. A GOP with control of the White House, Senate, House and most state governments in 2025 then effectively creates a system of “minority rule” in which Republicans can keep control of America’s government for decades even if the majority of voters favor Democrats as well as liberal and left-of-center policies.
In this scenario, the Democratic Party is in peril, but in some ways so is American democracy more broadly. So to this camp, Democrats must act aggressively and quickly over the next two years to forestall this outcome, by getting rid of the filibuster as it currently operates (most legislation requires 60 votes to pass in the Senate) and enacting an aggressive “democracy agenda.” This is a pro-democratic (small “d”) agenda in many ways, particularly in giving residents of Washington, D.C., representation in Congress and enhancing protections of the right to vote for Black Americans who live in GOP-dominated states. But it’s also clearly a pro-Democratic agenda (big “D”) in that it would, for example, add the two senators from D.C., who would almost certainly be Democrats.
Pfeiffer describes whether the Democrats get rid of the filibuster in the next two years as “the decision that will decide the next decade.” He argues that keeping the filibuster may be effectively “a decision to return to the minority and stay there for at least a decade.”
“The door is closing quickly in terms of us staying a functioning democracy. We have no time to waste,” said Meagan Hatcher-Mays, director of democracy policy at Indivisible. “Democrats have been handed this power to save it. We don’t have two years. We have a year. The window to actually get things done is really closer to 10 months.””
“Democrats would need every Democratic senator on board to get rid of the filibuster, so these members are super-important. And over the last few months, Manchin and Sinema have said they are strongly opposed to getting rid of the filibuster. Longtime senators like Feinstein have hinted in the past that they are wary of such a move too.
Part of this opposition to getting rid of the filibuster reflects ideological differences — Manchin in particular is more conservative than most (if not all) congressional Democrats. So he probably isn’t dying to get rid of the filibuster to vote for a $15 federal minimum wage, for example, because it’s not clear he favors that idea anyway.
But this bloc also disagrees with the this-is-an-emergency camp about the state of American politics right now. Feinstein is fairly liberal on policy issues. But she, like Manchin and Sinema, has suggested she wants to work in a Senate that is not hyperpartisan and seems to believe that is possible. In the view of people in this camp, the Republican Party is not completely dominated by an anti-democratic wing that won’t work with Democrats. So members in this camp view getting rid of the filibuster and other more aggressive moves as not only unnecessary but potentially really bad — making the Senate and Washington overall even more gridlocked and polarized than they already are.”
“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.”