But rather than scrap the filibuster entirely, the Democrats may want to instead consider reforming the procedure, so that it continues to exist for truly extraordinary circumstances, but ceases to be the easily deployed blockade it is today. Moreover, this approach would have another advantage, in that adopting it is politically feasible. Here’s why: The outright abolition of Senate Rule XXII—which now requires three-fifths of the Senate, or 60 votes, to pass a law—may be out of reach, even if Democrats win enough Senate seats to have 53 or more of the 100, a net gain viewed as unimaginable six months ago and a heavy lift now. This is because at least three and possibly more Democrats in the Senate have said they are opposed to eliminating the rule. No one is more adamant than West Virginia’s Joe Manchin, but he has company in Jon Tester, Kyrsten Sinema, and Doug Jones.
Read: The end of the filibuster—no, really
Of course, minds can change; that is what happened to a slew of Democrats who had long been traditionalists about Senate norms, such as Patrick Leahy, Chris Coons, and Dick Durbin. Even Tester has said that he might rethink his position if the Republicans stonewall everything. But if Democrats cannot find a path to change the rules in some fashion, the opportunities present in the first few months of a new administration, with momentum from a big victory, will dissipate.
What to do? Democrats need a backup plan, something that can get support from those reluctant to eliminate the rule completely and still provide an opening to do big things in the face of a united Republican opposition. Thankfully, there is an alternative.
The current rule in the Senate for legislation is that if a filibuster is conducted, three-fifths of the Senate—60 of the 100 senators—must vote to invoke cloture, which means stopping debate and moving toward a vote on the bill. It is a high hurdle, and the burden is perversely on the majority, not the minority, to overcome the delay. A substantial majority does not guarantee a bill’s passage. Take, for example, the highly popular DISCLOSE Act, which required disclosing the names of big donors to outside groups that pour huge sums anonymously into campaigns, and which passed overwhelmingly in the House in 2009 in response to the Supreme Court’s Citizens United decision, which had opened the dark-money floodgates. The DISCLOSE Act had the support of all 59 Democrats in the Senate but was blocked from becoming law, because every single one of the 41 Republicans refused to support cloture.
Many Americans associate the filibuster with drama from the civil-rights battles of the 1950s—when the Senate operated around the clock, with senators sleeping on cots set up in the hallways, and votes scheduled for 3 a.m. in efforts to break the will of the minority. But that was when the threshold for cloture was two-thirds of senators present and voting. Under the current rule, by contrast, doing so would be folly. Republicans would not have to show up around the clock—they need only a couple of their members to rotate, to be on the floor to deny any unanimous consent motions and to plague the majority by demanding a quorum call to keep the Senate going, and it would be on the majority to come up with enough votes to do so. Even during the period in 2009–10 when Democrats added their 60th senator, they were stymied on many occasions because one or more of their members was ill or unable to make it to Washington.