Senate Could Modify Filibuster Without Eliminating It, Experts Explain

With Republicans largely unified against much of President Joe Biden's agenda, calls from many Democrats to end the Senate's filibuster rule have grown—but experts suggest less-nuclear options may still be on the table, although all would chip away at the filibuster's power.

Biden has come out against doing away with the filibuster, saying that he wants to govern in a bipartisan manner and garner the support of Republicans for his legislative priorities. Moderate Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have also voiced their opposition to ending the filibuster, making the possibility of doing so highly unlikely. Ending the filibuster would require all 50 members of the Senate's Democratic caucus to agree—assuming no Republicans support the idea—and Vice President Kamala Harris would then be able to cast the deciding vote.

While Manchin or Sinema alone would easily be able to prevent the filibuster's demise, there are somewhat less drastic options that could help the Biden agenda move forward even without Republican support. Under the current Senate filibuster rule, most legislation requires the backing of a supermajority (60 votes) to invoke cloture to end debate before a vote can take place. With the current polarization in Congress, convincing 10 Republican senators to allow Biden's priorities to move forward seems like a nearly impossible feat.

U.S. Capitol
The U.S. Capitol as the sun sets on January 19, a day before the inaugural ceremony for President Joe Biden and Vice President Kamala Harris. ANGELA WEISS/AFP/Getty

"I think there are a number of Democratic priorities that will be extremely difficult to pass without changes to the filibuster," Molly Reynolds, a senior fellow of governance studies at the Brookings Institution, told Newsweek. Democrats currently see a difficult path to passing the Raise the Wage Act, which would increase the federal minimum wage to $15 per hour; the Equality Act, which prohibits discrimination against LGBTQ individuals; and the For the People Act (H.R. 1), which would expand voting rights.

"Given the outsized and lasting influence of former President Trump and his base of supporters, I see no way that H.R. 1 on election reform would ever overcome a Senate filibuster," Chris Haynes, an associate professor of political science at the University of New Haven, told Newsweek. Haynes said that the Equality Act may have a "better chance" of reaching the 60-vote threshold, but suggested that's unlikely.

Speaking to reporters on Monday, Manchin stated firmly that he would "never" support ending the filibuster. "Jesus Christ, what don't you understand about never?" the senator responded when questioned by a reporter about his position. Sinema reiterated her opposition to ending the legislative rule in a recent statement, saying, "I have long said that I oppose eliminating the filibuster for votes on legislation."

What's less clear is if the two moderate Democrats would be open to modifications to the way the filibuster is implemented going forward.

Joe Manchin
Senator Joe Manchin makes opening remarks at a hearing before the Senate Committee on Energy and Natural Resources on February 24. Leigh Vogel-Pool/Getty

"There are a few work-arounds that might allow Democrats to get Senate votes on legislation even without removing the filibuster," Haynes said. He pointed to how the Senate previously moved to exempt judicial nominations from the filibuster in 2013 and 2017, suggesting the chamber may be able to do this again to carve out exceptions for certain types of legislation.

"A Senate Democrat could raise a point of order that only a simple majority is needed for votes on bills, for example, that have no budgetary impact, such as background check legislation. The presiding Senate officer would then deny the motion, citing standing Senate rules, only to be appealed and ostensibly overruled by a simple majority of senators," Haynes suggested. "This would establish a new precedent moving forward, as long as the appealing majority remains intact."

Another change could be adjusting the supermajority threshold to a smaller number, such as 57, 55 or whatever number senators choose. But this would still mean that at least a few Republican senators would have to back Biden's agenda for legislation to move forward.

Some have suggested the Senate should implement a so-called talking filibuster. Haynes explained that this would "require those senators wanting to filibuster a bill to hold the floor for its duration," which would "make it difficult to sustain an indefinite filibuster and probably force compromise or for the minority to allow a vote on the bill."

Kyrsten Sinema
Senator Kyrsten Sinema arrives at the U.S. Capitol on February 13. GREG NASH/POOL/AFP/Getty

Other more innovative ideas, put forward by Howell Jackson, a professor at Harvard Law School, include changing the 60-vote threshold to 60 percent of the population. That would require an organization such as the Congressional Budget Office to carry out surveys to determine public opinion. Or the influence of a senator's vote could be adjusted in comparison to the population he or she represents—giving senators from more populous states a larger share of the vote and those from less populous states a smaller share.

"The Senate could get rid of the 'two-track system' and make it impossible to get anything else done during an active filibuster. This would force public attention on the matter and amp up the pressure to resolve the filibuster," Haynes also suggested. However, he noted that it's not clear if any of these proposals would be supported by Manchin, Sinema and the White House.

"A lot of this depends on whether Democratic filibuster defenders are more wedded to the concept of a filibuster or the 60-vote requirement," he said.

Reynolds emphasized that any changes would need "the support of Manchin and others who are skeptical full filibuster abolition would be necessary." She also said that she believes further modifying the filibuster would likely lead to its rapid end.

"Incremental change isn't stable over the medium term," Reynolds explained. "I think once you start chipping away at the filibuster, it is only a short matter of time before the entire thing is eliminated."