What is a talking filibuster exactly?

When Joe Biden was first elected to the Senate in 1972, the filibuster was rarely deployed, and when it was, it could be beaten back by a vote of two-thirds of the Senate. That almost never happened, and instead the threat of a filibuster would sink legislation, not because the majority couldn’t overcome it, but because they didn’t want to waste a few weeks on it and had other pressing business to get to. In 1975, the rule was reformed to lower the threshold from 67 down 60, though it was still rarely used. 

The Senate that Joe Biden grew up in -- remember he was 29 when he was elected -- largely passed bills by a simple majority vote, even controversial bills. When the debate was over, even senators who opposed the underlying bill would vote yes on what’s known as “cloture” -- which means closure of the debate. That began to change first with Harry Reid as Senate minority leader, determined to fight President George W. Bush, but it went into overdrive under Senate Majority Leader Mitch McConnell, who effectively raised the threshold any legislation needed to 60 votes in order to undermine President Obama. (For more on the history, this Deconstructed episode from last month has you covered.)

For somebody like Biden, that phenomenon -- that legislation needs 60 votes to pass -- is a relatively new innovation, not the beating heart of the Senate as some people claim. And nobody knows that better, perhaps, than Joe Biden. He alluded to just that in an interview with George Stephanopolous published this evening by ABC.

“I don't think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days," Biden said. "You had to stand up and command the floor, you had to keep talking."

"You're for bringing back the talking filibuster?" Stephanopulos asked.

"I am. That's what it was supposed to be," Biden said.

"It's getting to the point where, you know, democracy is having a hard time functioning." 

Notice that Biden is using the credibility he owns as a Senate traditionalist -- he was elected six years before I was even born, and I’m getting old -- to make the case that reform is necessary to defend democracy and return the Senate to the working condition it was in when he got there. It’s no secret Biden was far from the first person I’d have liked to see win the Democratic nomination, but he also may possess a unique ability to disarm centrist and conservative Democrats who otherwise might oppose the same project or program if proposed by Bernie Sanders, Elizabeth Warren, or, really, anybody but Biden. Ted Cruz recently criticized Biden as “boring but radical” and while Cruz is never serious about anything, and Biden is far from a radical, there’s some truth, even if Cruz doesn’t recognize it, behind that point. A $1.9 trillion stimulus just scans to the public as more “reasonable” when coming from Biden than it would from a Democrat Republicans can more easily paint as a radical -- a task they managed to accomplish with Obama even as Obama governed as a centrist. There is a genuine only-Nixon-could-go-to-China element to Biden’s gentle evisceration of the filibuster. 

Had Sanders or Warren suggested changes to the filibuster, you can be sure that West Virginia Sen. Joe Manchin would be hearing none of it. Instead, in his interview Tuesday night, Biden was merely following Manchin, who has recently opened up to the idea of bringing back the “talking filibuster.” 

So what would these new rules look like? 

Nobody yet knows, but from conversations with Senate sources over the past few weeks, months, and years, I can take a few stabs: First of all, the 60-vote threshold for cloture has to go. The current rules put the onus on the majority to marshal 60 votes -- which no majority will have anytime in our lifetimes, probably, from here on out. If Democrats do manage to reform the filibuster, you have to assume this much: They will not go through all that trouble simply to leave Mitch McConnell with a veto over their agenda. How they strip that veto remains to be seen, but the new rules would shift the onus from the majority -- which today needs 60 -- to the minority -- which today barely has to show up. As Manchin says, you have to make it “more painful” for the minority to obstruct, have to make them actually be there on the floor. “Maybe it has to be more painful, maybe you have to make them stand there,” Manchin told Fox News Sunday. 

So if cloture can’t stay at 60, how do you get it to a place where a majority can reasonably reach it? One solution is to deploy the “present and voting” approach. One possible rule: If two-thirds of senators present-and-voting support cloture, then cloture is invoked, and the debate is over. That would mean that if all 50 Democratic senators showed up at 3 am to call the vote, Republicans would need, by my math, 34 senators ready to vote no. They can do that sometimes, but eventually Democrats -- or any future majority -- would wear them down and find a moment where enough of them are literally sleeping that they can move it across the floor. Another approach could be to require 41 votes to sustain a filibuster at any time. Under the current rules, if a cloture vote gets 59 yes and zero no votes, the no votes still win. You could flip that to say that unless 41 senators insist on the talking to continue, the debate is over. And again, if that vote is called at 3 am, there may not be 41 senators able to get there within the allotted time. 

In a roundabout way, Manchin confessed to Fox News that the current iteration of the 60-vote threshold is on the chopping block. “There’s different ways to get to that 60 vote, and people have to make sure that they’re willing to show up -- it would be great, don’t you think, if someone was down there telling you why they’re objecting,” he said.

To parse that a bit, consider the first part. How are there different ways to get to 60 votes? On its face, that’s absurd. There’s only one way to get to 60. So what is Manchin actually trying to say there? If the vote is on the question of whether debate should be extended or should be brought to a close -- cloture -- it’s not unreasonable to assume that anybody not voting is also not interested in debating anymore. If they were, they’d be there. Flipping the onus to the minority to marshal votes would align with the spirit of Manchin’s answer. What he’s doing is aligning the non-votes with the yes votes. So unless the minority can show they have 41 votes to keep debate going, it’s assumed the majority has 60. 

Both of those approaches -- three-fifths present-and-voting; 41 senators on the floor at any time -- would satisfy a key requirement of Manchin’s, that the minority have a real chance to be involved. “You have to give the minority the ability to object or involve themselves,” Manchin said, and I’d emphasize the “or” there. The minority would have substantive involvement in the form of floor speeches, but could also offer amendments to the bill. Defenders of the current “silent filibuster” warn that a 50-vote threshold would turn the Senate into some sort of rump version of the House, where party leadership just muscles through bill after bill. But the talking filibuster would make that so hard for the majority that the chamber would retain its reputation for, to put it politely, deliberation. It just might, in the end, actually get something done.