Democrats eye restricting filibuster with 'mini-nuke,' 'democracy carve-out'

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Democrats under pressure to pass a progressive agenda are lining up behind proposals to erode the only thing standing in their way: the filibuster, setting up a fierce battle with Republicans fighting to save the venerable Senate institution from death by incrementalism.

Sen. Dianne Feinstein, California Democrat, said Friday she would support President Biden’s call for a return to the talking filibuster, the latest Democratic defender of Senate traditions to show wiggle room on minority protections.

Under a talking or standing filibuster, lawmakers would be required to keep up a steady stream of verbiage on the Senate floor to stop a vote on legislation, instead of simply indicating their intent to hold up a bill in what is known as the silent filibuster.

“I certainly support the talking filibuster as proof positive that if someone cares enough to stop the Senate in its tracks, to say to the Senate, you cannot even consider the measure that is before you—is it too much to ask them to stand at their desk to show that personal commitment?” said Senate Majority Whip Dick Durbin on CNN’s “State of the Union.”

The Illinois Democrat signaled the start of a filibuster bust-up campaign last week by announcing that he would support any proposal “that ends with the misuse of the filibuster as a weapon of mass obstruction.”

“Right now they phone it in. They call the cloakroom, the room right off the floor of the Senate chamber, and say, I think I’m going to do a filibuster, stop that bill on the floor, and that’s all it takes now,” Mr. Durbin said. “Some senators start a filibuster on Friday, go home for the weekend, and come back on Monday to see how they’re doing.”

Under the Senate rules, 60 votes are required for cloture to stop any kind of filibuster, a high bar in the current 50-50 Senate.

Mr. Biden endorsed last week the return to the talking filibuster as Democrats seek to take advantage of a Democratic House and White House to pass ambitious progressive legislation on immigration, elections, gun control and other hot-button issues.

The filibuster could be nuked entirely with a simple majority, but standing in the way are at least two Senate Democrats—Joe Manchin of West Virginia and Krysten Sinema of Arizona—who have said they will not vote to eliminate the procedure.

That leaves Democrats to consider a host of creative carve-outs, including what the Brookings Institution described as a “mini-nuke”—banning filibusters for certain motions such as starting debate—and the “democracy carve-out,” which progressives have advocated for legislation that concerns voting rights.

Such an exception would clear the way for H.R. 1, a sweeping voting-rights overhaul that would require mail-in voting, early voting, automatic voter registration and other measures in what critics have described as a federal takeover of state elections. The House passed the bill earlier this month.

“No Senate rule should overrule the integrity of our democracy,” said Sen. Raphael Warnock, Georgia Democrat, last week on the Senate floor. “We must find a way to pass voting rights whether we get rid of the filibuster or not.”

Republicans have blasted the proposed filibuster-tinkering as a naked political grab, given that Democrats like Mr. Durbin staunchly opposed toying with the procedure when they were in the Senate minority from 2014-20.

Back then, Mr. Durbin said that ending the filibuster would be “the end of the Senate as it was originally devised and created going back to our founding fathers. We have to acknowledge a respect for the minority.”

On Sunday, he sang a different tune. “I’d like to see both sides come together and say, this is reasonable, a talking filibuster, a personal commitment, is reasonable,” Mr. Durbin said.

Sen. Tom Cotton, Arkansas Republican, pointed out that just four years ago, 27 Democrats demanded in a letter that then-Senate Majority Leader Mitch McConnell keep his hands off the filibuster.

“Now, most of those senators have flip-flopped simply because they have the barest of majorities,” said Mr. Cotton on “Fox News Sunday.”

The talking filibuster would be the least controversial of the options under discussion, given its long and storied history. Actor Jimmy Stewart made it famous in the 1939 film “Mr. Smith Goes to Washington” when his character undertakes an exhausting one-man filibuster in the name of fighting corruption.

Sen. Ted Cruz, Texas Republican, pulled a 21-hour talking filibuster in 2013 in a failed effort to defund the Affordable Care Act, but critics worry that the return of the all-night gabfest would be the first step in a long-term strategy to chip away at the procedure.

Terry Schilling, president of the conservative American Principles Project, said the endgame is hardly in doubt, given that progressive groups and some Democrats have already called for abolishing the procedure that began in 1806 with Aaron Burr.

“It’s no secret that many left-wing Democrats would love to entirely eliminate the Senate filibuster in order to jam their radical agenda through Congress,” said Mr. Schilling. “Ironically, many of these Democrats were among the biggest defenders of the filibuster in previous years. But now that their party has a slim majority, they’ve conveniently changed their minds.”

Sen. Tina Smith, Minnesota Democrat, came out March 4 in favor of abolishing the filibuster, saying it was “used to deny voting rights and the opportunity for Black people to own a home or land, and to build wealth and opportunity for their own families.”

“Since a few moderate Democrats seem unwilling to join in this hypocrisy, the left is now advancing an alternate proposal of restoring the ‘talking filibuster,’” said Mr. Schilling. “But no one should be fooled: this is only the first step on a slippery slope to wiping out the filibuster altogether. And if Democrats succeed, every extreme piece of their wishlist — from undermining our elections to destroying women’s sports — will become law.”

That slide began in 2013 when then-Senate Majority Leader Harry Reid triggered the nuclear option by eliminating the filibuster for executive appointments and judicial nominees except for Supreme Court picks.

In April 2017, Mr. McConnell extended the nuclear option to include Supreme Court nominees as they sought to cut off debate on Neil Gorsuch, who was ultimately confirmed to the high court.

Supporters argue that the filibuster serves several purposes, including protecting the rights of the minority party and forcing lawmakers to strike a balance on contentious issues.

“There is something to be said for compromise and bipartisanship and respect for the rights of the minority in the Senate,” said Mr. Cotton. “These rules have been in place since the beginning of our republic, and the Democrats are engaging in pretty highly situational ethics.”

Mr. Durbin said Republicans could avoid a filibuster standoff by supporting Democratic legislation on, for example, immigration reform.

“We are desperately in need to rewrite our immigration laws to stop this mess at the border and to stop the problems that we face,” Mr. Durbin said. “To do it, we need a bipartisan majority, 60 senators under the current rules. Can we do it? Well, if 10 come forward and join all the Democrats, yes.”

He added: “So, it’s a challenge to my colleagues. Make it work.”

⦁ S.A. Miller contributed to this report.

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