The White House said Friday that President Joe Biden would speak in the coming weeks about moving to “fundamentally alter” the filibuster or even eliminate the legislative roadblock that empowers the Senate minority as he aims to pass sweeping voting laws and secure the nation’s credit.
Press secretary Jen Psaki said Americans should “stay tuned” about what changes Biden would embrace, as he appears to be warming to changing the Senate rule. Biden has previously stated he was supportive of requiring that lawmakers physically hold the Senate floor to sustain a filibuster, but on Thursday suggested he could support eliminating it entirely for some issues.
In a CNN town hall, Biden said that if Republicans refuse to provide the votes necessary to raise the debt limit — as they threatened last month before backing down on the eve of a potential government default — “I think you’ll see an awful lot of Democrats being ready to say: ‘Not me. I’m not doing that again. We’re going to end the filibuster.’”
He predicted that eliminating the 60-vote threshold to end debate on most legislation would be “difficult” beyond the debt limit, which he called a “sacred right.”
“Voting rights is equally as consequential,” Biden added, suggesting he would be open to filibuster changes to pass the long-stalled Democratic legislation as well as “maybe more” on unspecified issues.
Psaki on Friday declined to elaborate on Biden’s remarks, only to say that Biden believes “we are at an inflection point on a range of issues” and that “not getting voting rights done is not an option.”
“I think the president will have more to say about this in the coming weeks,” she added.
Biden on Thursday suggested that he had not moved sooner to support changes to the filibuster to avoid angering Senate moderates like Joe Manchin and Kyrsten Sinema, whose votes he needs to pass his multitrillion-dollar domestic spending initiatives.
Biden said the negotiating process on the twin infrastructure and social benefits bills were keeping him from other legislation.
“What it’s done is prevented me from getting deeply up to my ears — which I’m going to do once this is done — in dealing with police brutality, dealing with the whole notion of: What are we going to do about voting rights,” Biden said. “It’s the greatest assault on voting rights in the history of the United States — for real — since the Civil War.”
On Wednesday, Senate Republicans blocked Democrats aiming to take up the sweeping elections legislation that they have claimed would serve as a powerful counterweight to new voting restrictions taking effect in conservative-controlled states.
But there were signs that Democrats are making headway in their effort to create consensus around changing Senate procedural rules.
Sen. Angus King, a Maine independent who caucuses with Democrats, recently eased his longstanding opposition to changing the filibuster rules, which create a 60-vote threshold for most legislation to pass.
“I’ve concluded that democracy itself is more important than any Senate rule,” said King, who acknowledged that weakening the filibuster would likely prove to be a “double-edged sword” under a future Republican majority.
How does one go about getting around the filibuster?
According to the Brookings Institution, “The most straightforward way to eliminate the filibuster would be to formally change the text of Senate Rule 22, the cloture rule that requires 60 votes to end debate on legislation.”
However, the think tank says this is unlikely. “Ending debate on a resolution to change the Senate’s standing rules requires the support of two-thirds of the members present and voting.”
Another option, which Brookings said is also complicated but more likely, is to create a new Senate precedent. “The chamber’s precedents exist alongside its formal rules to provide additional insight into how and when its rules have been applied in particular ways. Importantly, this approach to curtailing the filibuster—colloquially known as the “nuclear option” and more formally as “reform by ruling”—can, in certain circumstances, be employed with support from only a simple majority of senators.”
It further explained that “the nuclear option leverages the fact that a new precedent can be created by a senator raising a point of order, or claiming that a Senate rule is being violated.” In 2013 and 2017 the Senate deployed this tactic to reduce the voters needed to end debate over nominations.
Of course, the filibuster can also be weakened, with a Senate majority banning it on particular motions while leaving it otherwise instact. This might be used, for instance, to open debate on an item, while leaving intact senators’ rights to debate or amend the legislative matter.