If Democrats Gut Filibuster, Republicans Have a Final Option to Delay Biden's Agenda

As frustrations mount over opposition to President Joe Biden's legislative agenda, more Democrats are getting on board with ending the filibuster, and if Democrats were to gut the Senate rule, Republicans' final attempt to delay partisan legislation could be to not show up to work.

The passage of the American Rescue Plan along party lines signaled to Democrats that moving Biden's agenda through the Senate won't be an easy task, reigniting talk of ending the filibuster. That would put Democrats in a position of passing legislation without Republican support, but it could come back to haunt them and require them to force senators to come to the floor for votes.

"Nothing will happen in the Senate. They need us to show up to have a quorum. They need us there if they want to get something done," GOP Senator Rick Scott told Fox News' Brian Kilmeade on Friday.

Before the Senate can start conducting its business, the Constitution says, a quorum of 51 senators must be present. Often, the Senate presumes a quorum and begins without the full 51 senators, but if a senator suggests the absence of a quorum, the presiding officer must call roll.

Senate Minority Leader Mitch McConnell reminded Democrats of this fact during a floor speech on March 16. He advised senators to "imagine a world" where every single task requires a physical quorum, which Republicans could significantly delay if they collectively didn't show up to the Senate floor.

However, they'd likely be unable to completely halt Senate business. The framers of the Constitution envisioned the possibility of this and therefore provided each chamber with the ability to "compel the attendance of absent members." If the power of persuasion doesn't work, senators can be fined or even arrested for not showing up to work.

mitch mcconnell filibuster quroum biden
Senate Minority Leader Mitch McConnell heads to the floor of the Senate on January 26. Samuel Corum/Getty Images

In 1988, Senator Bob Packwood was carried into the Senate chamber by Capitol Police, according to The Washington Post, after barricading himself in his office in an attempt to keep Democrats from getting a quorum. Decades earlier, in 1942, the sergeant at arms convinced Senator Kenneth McKellar, then 73, to accompany him to the Capitol, as he was "urgently needed."

"As they approached the Senate wing, McKellar suddenly realized what was up," the Senate's website recounts. "An aide later recalled, 'His face grew redder and redder. By the time the car reached the Senate entrance, McKellar shot out and barreled through the corridors to find the source of his summons.'"

Given that Republicans could be "tracked down" and brought to the Senate for quorum, Matt Klink, a Republican strategist, told Newsweek that not showing up would mostly be "symbolic." But it could set a "new normal" in the Senate, where every action requires a voice vote.

Passing a bill in the 50-50 split Senate requires just 51 votes, which the Democratic caucus has thanks to Vice President Kamala Harris, who can cast the tiebreaking vote. However, before a bill can get to a vote, it must overcome a filibuster, which requires 60 votes to end.

Eliminating the filibuster for good is unlikely to happen, as changing the text of the Senate rule would require a two-thirds vote, and there's a near-zero chance 17 Republicans would vote to get rid of a rule that could help block the Democrats' agenda. What's more likely to happen is that Democrats will invoke the "nuclear option," where a new precedent is created to override a standing rule, effectively ending the filibuster.

Both sides of the aisle have used it in the past to confirm their president's nominations, and Democrats are looking to go nuclear once again to help Biden. While advantageous in the moment, experts warn that every time the nuclear option is used it makes it easier for the next party in power to invoke it.

"It will hurt Democrats in the 2022 elections and, ultimately, when the Republicans regain control of the Senate and use their majority to pursue a partisan GOP agenda," Klink said. "While partisans on both sides want their party's ideological priorities to pass, the majority of America reside in the middle and want compromise to get the country's most challenging problems solved."

McConnell warned the Democrats that Republicans would look to seek retribution if they went nuclear. Once the GOP regains the majority, he said, they wouldn't stop at erasing "ever liberal change that hurt the country" but would "strengthen America with all kinds of conservative policies."

The Democratic caucus has the numbers to go nuclear, but that doesn't mean they have the votes needed. Senator Joe Manchin, a Democrat from West Virginia, and Kyrsten Sinema, a Democrat from Arizona, have publicly opposed it ,and without their support, Democrats could be two votes shy of the necessary 51.

In a swing state like Arizona or West Virginia, which went heavily for former President Donald Trump, gutting the filibuster could hurt senators when they're up for re-election, Klink said.

Trump told commentator Lisa Boothe on her podcast that if Democrats get rid of the filibuster it would be "catastrophic" for the Republican Party. The former president pushed Republicans to gut the filibuster while they had the Senate majority in 2018, warning them that Democrats would do it once they regained power.

On Tuesday, Republican Senator John Thune recalled how the GOP didn't cave to the president's attacks and said he hoped there were enough "wise and thoughtful Democrats" who understood that gutting the filibuster would create a "nuclear winter in the United States Senate."