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The Roe strategy

Still image from Mr. Smith Goes to Washington (1939).

Sen. Joe Manchin repeated this week that he is a big No on ending the filibuster. The West Virginia Democrat said on Monday the legislative relic would “never” be eliminate as long as he was around. Pressed again by a reporter, Manchin said, “Jesus Christ, what don’t you understand about ‘never’?”

Norm Ornstein cautioned Democrats the next day not to push Joe Manchin too hard on ending the filibuster to move forward the Biden agenda:

In 2001, I warned that if Republicans harangued Sen. Jim Jeffords (Vt.) over his apostasy on their party’s policy priorities, they would regret it. He would switch parties and, in a 50-50 Senate, shift the Senate majority. The next month, it happened. The same concern now applies to Democrats with Manchin. Push too far, and the result could be Majority Leader McConnell, foreclosing Democrats’ avenue to pursue infrastructure, tax reform and health reform legislation.

The rest of us might not like being in this situation, but then again, we don’t like a year-plus of pandemic isolation either. So now what?

Ornstein proposed (as Ian Millhiser had in February at Vox) ways to modify the filibuster to retain minority input while preventing the Senate from becoming a “glorified House,” as Manchin, digging in his heels back in November. Millhiser notes that the Senate has modified filibuster rules “many times — and with increasing frequency” in the last century.

It reminded me of a successful tactic used against another “rule” opponents find hard to eliminate. We’ll come back to that.

Ornstein offers three changes that might allow the Democratic agenda to move forward while preserving Manchin’s and Kyrsten Sinema’s (Ariz.) vision of how the Senate should work:

Make the minority do the work. Currently, it takes 60 senators to reach cloture — to end debate and move to a vote on final passage of a bill. The burden is on the majority, a consequence of filibuster reform in 1975, which moved the standard from two-thirds of senators present and voting to three-fifths of the entire Senate. Before that change, if the Senate went around-the-clock, filibustering senators would have to be present in force. If, for example, only 75 senators showed up for a cloture vote, 50 of them could invoke cloture and move to a final vote. After the reform, only a few senators in the minority needed to be present to a request for unanimous consent and to keep the majority from closing debate by forcing a quorum call. The around-the-clock approach riveted the public, putting a genuine spotlight on the issues. Without it, the minority’s delaying tactics go largely unnoticed, with little or no penalty for obstruction, and no requirement actually to debate the issue.

One way to restore the filibuster’s original intent would be requiring at least two-fifths of the full Senate, or 40 senators, to keep debating instead requiring 60 to end debate. The burden would fall to the minority, who’d have to be prepared for several votes, potentially over several days and nights, including weekends and all-night sessions, and if only once they couldn’t muster 40 — the equivalent of cloture — debate would end, making way for a vote on final passage of the bill in question.

Go back to the “present and voting” standard. A shift to three-fifths of the Senate “present and voting” would similarly require the minority to keep most of its members around the Senate when in session. If, for example, the issue in question were voting rights, a Senate deliberating on the floor, 24 hours a day for several days, would put a sharp spotlight on the issue, forcing Republicans to publicly justify opposition to legislation aimed at protecting the voting rights of minorities. Weekend Senate sessions would cause Republicans up for reelection in 2022 to remain in Washington instead of freeing them to go home to campaign. In a three-fifths present and voting scenario, if only 80 senators showed up, only 48 votes would be needed to get to cloture. Add to that a requirement that at all times, a member of the minority party would have to be on the floor, actually debating, and the burden would be even greater, while delivering what Manchin and Sinema say they want — more debate.

Narrow the supermajority requirement. Another option would be to follow in the direction of the 1975 reform, which reduced two-thirds (67 out of a full 100) to three-fifths (60 out of 100), and further reduce the threshold to 55 senators — still a supermajority requirement, but a slimmer one. Democrats might have some ability to get five Republicans to support their desired outcomes on issues such as voting rights, universal background checks for gun purchases or a path to citizenship for Dreamers. A reduction to 55, if coupled with a present-and-voting standard would establish even more balance between majority and minority.

Ornstein does not explicitly mention the Senate requiring an actual talking filibuster again. That kind almost never occurs these days.

Adam Jentleson, author of “Kill Switch,” discussed with Terry Gross of NPR’s “Fresh Air” how different today’s “silent filibuster” is from the Mr. Smith Goes To Washington kind:

But in the modern Senate, the filibuster looks nothing like that. And actually, speaking is not even required. All you have to do when a bill comes to the floor is have a member of your staff send an email to what’s called the cloakroom, which is sort of the nerve center of action on the floor, saying that your member, your – the senator you work for, has an objection to this bill. That single email could be a phone call, could be a conversation in the hallway. That single objection raises the threshold from passing a bill from the simple majority, where technically the rules still have the threshold today, to a supermajority of what is now 60 votes.

And that is a filibuster. There’s no speaking required. No one has to take the floor. No one has to explain themselves. If a senator raises this objection and increases the threshold from a majority to a supermajority, they never actually have to explain themselves at any point. They just do it. And it’s become accepted. And that is why it’s become normalized that most bills in the Senate require 60 votes to pass.

But I just want to emphasize that this is not actually a matter of the rules themselves because the rules still state that a simple majority is what’s required to pass. This is a matter of a procedural hurdle that’s come to be developed over the last few decades and become routinized. The reason bills need 60 votes to pass is that they can’t clear that procedural hurdle to get to the final vote. And that is the problem that is paralyzing the Senate today.

Which gets us back to Manchin’s reasoning behind preserving the filibuster:

“The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.”

But under the procedural hurdle of the silent filibuster no minority input is required, offered, or heard. By Manchin’s own reckoning, that defeats the “whole purpose of the Senate” as the practice stands today.

The silent filibuster has made it so convenient for a single senator to stop a piece of legislation with no public justification that there has been no real push to eliminate it. But since the urgency of the moment requires Democrats advance legislation and Democrats such as Manchin and Sinema stand in the way of abolishing the filibuster outright, salutary modifications might be the most expedient way forward.

Ornstein’s advice recalls of how conservatives in the states attack Roe v. Wade. When they could not abolish Roe outright, they changed their strategy. Conservative states nibbled around the edges of the ruling by erecting enough administrative barriers to getting an abortion to make Roe‘s guarantees functionally meaningless. Still there and yet not there.

Like it or not (as conservatives wield it), that is a proven strategy. Democrats might want to deploy it against the filibuster.

(h/t NS)

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