President Joe Biden left the door open to supporting drastic reform to the filibuster during his first press conference on Thursday, calling the Senate procedure that requires 60 votes to pass most legislation a relic of the Jim Crow era.
“If there's complete lockdown and chaos as a consequence of the filibuster, then we'll have to go beyond what I'm talking about,” Biden said after reiterating his position that the Senate should return to a rule that would require senators to continuously speak on the floor to delay a bill.
The focus on the filibuster comes as Biden has called on Congress to pass new gun control measures following mass shootings in Atlanta and Boulder, Colorado and as the Senate has begun hearings around H.R. 1, an expansive voting rights and democracy reform bill. Republican state legislatures have pushed bills that would restrict voting access following the 2020 election, putting pressure on Biden and Democrats to act to expand and protect voting rights.
The voting rights restrictions state Republicans are proposing are “sick,” Biden told reporters at the White House. “I’m convinced that we’ll be able to stop this, because it’s the most pernicious thing, this makes Jim Crow look like Jim Eagle,” he added. Biden added that he would do everything in his power with allies in Congress to prevent those measures from becoming law.
Biden spoke about the historic use of the filibuster and added that it’s being “abused in a gigantic way.” He later agreed when asked about former president Barack Obama’s assessment that the filibuster was a relic of the Jim Crow era but stopped short of calling for the procedure to be abolished.
The Catch-22 of the Senate filibuster is that it requires 60 votes to pass any piece of legislation, but only 51 votes to do away with the filibuster itself. This is because the rules of the Senate can be rewritten with a simple majority. That means Democrats could, in theory, eliminate the filibuster if all 50 Democratic senators vote to do so and Vice President Kamala Harris casts the tiebreaking vote in favor.
“Successful electoral politics is the art of possible,” Biden said, when asked directly if he supported ending the rule. “Let's figure out how we can get this done and move in the direction of significantly changing the abuse of even the filibuster rule.”
Biden’s position is a shift from just weeks earlier, when the White House was resistant to making any changes to the procedure to push through the latest round of coronavirus relief. Progressive groups and some Senate Democrats have recently expressed their frustration with the filibuster and have called for the rules to be changed in order to pass key parts of their agenda.
Democrats still face hurdles for reforming or abolishing the filibuster from moderate Democratic senators, including Sens. Joe Manchin and Kyrsten Sinema, who favor bipartisan legislation rather than reducing the threshold to 51 votes.
Ending or significantly changing the filibuster would mean doing away with centuries of precedent, though it would hardly be the first time. Both parties have whittled away at the filibuster in recent years. The filibuster no longer applies to votes confirming cabinet secretaries, judges, or even Supreme Court justices. Both parties have also used a filibuster-proof loophole called budget reconciliation to pass massive bills — COVID relief by Democrats, tax cuts by Republicans — through the Senate. But the filibuster on legislation has proven to be the last line in the sand.
One halfway measure being considered by Democrats is to force those doing the filibustering to actively partake. In the popular imagination, the term filibuster brings to mind images of politicians standing for hours, blocking legislation by refusing to stop talking. In the Senate, the reality is much less dramatic. There is a vote to progress legislation and if it doesn’t get to 60 votes, a bill stays where it is (in practice, this kills the bill). Moving to an active filibuster would force Republicans to have to be physically present to hold up legislation.
Senate Minority Leader Mitch McConnell aggressively used the filibuster to kill progressive legislation both under Obama and former president Donald Trump when Democrats controlled the House of Representatives. Earlier this year, McConnell warned Democrats that if they did away with the filibuster, Republicans would do everything in their power to retaliate. “If this majority went scorched-earth, this body would grind to a halt like we’ve never seen,” he said. “It would be a nightmare. I guarantee it.”