The filibuster debate still hasn’t happened in the only place it matters

By Paul Kane

Reporter

December 18, 2021 at 1:14 p.m. EST

The filibuster debate still hasn’t happened in the only place it matters

Sens. Jon Ossoff (D-Ga.) and Raphael G. Warnock (D-Ga.) walk off the Senate floor and onto an elevator on Capitol Hill. (Jabin Botsford/The Washington Post)

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Yet there’s one place where this debate hasn’t happened: on the Senate floor itself.

Aside from a few speeches here or there, the Senate has not had a real debate about its rules for many years, which some Democrats believe is painfully ironic given how much they complain about this issue. That’s why some Democrats are pushing leadership to devote floor time next month to a fulsome debate about different proposals to reshape how the Senate conducts business, a process that would probably end in a deadlock but at least compel each side to offer some proposals and formally debate their merits.

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“I think it’s appropriate for us to have some kind of debate about how to make this place function. If we’re going to be in the world’s greatest deliberative body — and not say that with an eye roll or a smirk — we should at least debate these rules that have us stuck in the mud,” Sen. Brian Schatz (D-Hawaii) said Friday.

To that end, C-SPAN’s annual year-end statistics point to just how stale the Senate has become, a place where the orators of yesteryear would find themselves wondering what happened to the place.

In 2021, the Senate held just 136 hours of actual debate on legislation or confirming presidential appointments, just 12.5 percent of the time spent in session. Overall, the Senate spent more than 200 hours essentially doing nothing — periods known as quorum calls in which no one is recognized to speak and the clerks slowly read the roll alphabetically awaiting someone to ask to be recognized.

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In 2013 and 2014, by contrast, the Senate devoted more than 600 hours to formal debate time, more than 55 percent of all activity on the chamber floor.

This year’s Senate has been productive — producing a $1.9 trillion pandemic recovery bill in March and a more than $1 trillion infrastructure bill in the summer while confirming a historically large number of federal judges — but rank-and-file senators have felt left out of the process.

So much of that productivity happened because of closed-door negotiations in the office of Senate Majority Leader Charles E. Schumer (D-N.Y.) and in secretive talks among Biden advisers and key moderates such as Sens. Joe Manchin III (D-W. Va.) and Kyrsten Sinema (D-Ariz.).

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These frustrated senators want to at least have a public airing of their grievances.

Under the standing rules, a major change would require a two-thirds majority to alter rules, a massive hurdle in any Senate but even more so in this current 50-50 body. Both sides have, in the past eight years, used a unilateral procedural move to lower filibuster requirements from 60 to 51 votes on presidential nominees, while leaving intact the 60-vote threshold for most legislation.

Many Democrats support nixing that rule too, sometimes nicknamed the “nuclear option” by insiders, after watching several key pieces of legislation run up against GOP filibusters. This summer and fall as Republicans refused to consider debating legislation to expand voting rights and other electoral reform issues, and once Sinema reiterated her opposition to blowing up filibuster rules in the past few days, Democrats vented their anger but also started talking about other options.

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Sen. Raphael G. Warnock (D-Ga.), finishing his first year in office, fumed about how the GOP actually blocked, through a filibuster, a motion that would have allowed debate only on voting rights legislation.

“The American people don’t even get to see us debate the issues that matter,” Warnock told reporters as he left a long Democratic meeting Friday focused on Senate rules. “They didn’t block voting rights. They blocked our ability to have a debate. So that needs to be corrected.”

Warnock and Schatz want senators to actually vote on a few different ideas, putting people on the record about an issue that they otherwise talk so much about.

“In the end, if the votes are not there to change the rules, fair enough, that’s democracy,” Schatz said, acknowledging that if the proposals are set at 67-vote hurdles, a rules change is quite unlikely.

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Sen. Jon Tester (D-Mont.) has been part of a small group discussing the issue, first under the guise of whether Manchin and Sinema would support a filibuster carve-out to allow voting rights and some election laws to pass with simple majorities. But the discussions moved far beyond that.

“I think there’s plenty of things,” Tester said.

Some proposals might include limits on the number of holds that an individual senator can place on nominees, which became an issue in the closing days of this year’s session with Sen. Ted Cruz (R-Texas) holding up dozens of diplomatic nominees over a separate policy issue related to Russian energy production.

Another idea, Tester said, might be to grant special fast-track procedures to legislation that gets a large bipartisan vote in committee or bills that are supported by both the chair and ranking minority member of the panel of jurisdiction.

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“The sense is that the Senate is not functioning, not just on voting rights but on other things as well,” Warnock said.

Some Democrats would like to force the minority party to have to spend more time defending its blockade, reviving what some call the “talking filibuster” out of the Hollywood legend. Back in May, Republicans filibustered the proposed creation of an independent Jan. 6 commission, with just 35 GOP senators on hand.

With 54 votes that day, Democrat actually had more than 60 percent of those on hand, but a rules change in 1974 put the onus on the majority to produce 60 votes no matter who actually shows up for the roll call.

Here’s what you need to know about the procedure’s complicated history meant to delay, delay, delay. (Drea Cornejo/The Washington Post)

Rank-and-file Democrats believe that a real debate on reform proposals, with actual votes, might help educate senators about the system. The Senate went until 1917 without any rules to cut off filibusters, but they were very rare back then, and then came more changes to those rules in 1974.

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“There’s a sense that the filibuster was never changed, and that’s not true. The Senate has modified its rules to stay functional throughout history, and only recently have we decided that these rules are etched in stone,” Schatz said.

Schumer hosted a discussion Friday among all Democrats with Marty Paone, who spent several decades as a top parliamentary adviser to Senate leaders. It was meant as a history lesson to explain the evolution of the chamber’s rules.

Now finishing his ninth year in the Senate, Schatz has never really seen a full debate about how to change the Senate’s ways of doing business. There was a late 2013 move, invoked by Democrats, to unilaterally lower filibuster thresholds for nominees and a 2017 action, by Republicans, to apply the lower standards to Supreme Court appointments.

But those were brief moments, with quick votes. It wasn’t a broad examination of what’s wrong with the Senate.

“If nothing else,” he said, “that would be an interesting thing to watch.”