WASHINGTON — When Sen. Joe Manchin of West Virginia opened the door this week to making it more "painful" to block legislation, some Democrats saw a game-changing opportunity to remake the Senate and lift a key obstacle to a progressive agenda.
It was a telling shift for Manchin, the most outspoken Democratic supporter of the filibuster — an apparent sign of party consensus that the rule can be softened, if not abolished. Some progressives say his idea would open the door to passing ambitious bills to bolster voting rights and gun control, which cleared the House and are headed for a fatal crash with the Senate's 60-vote threshold.
"It’s very significant," Sen. Jeff Merkley, D-Ore., the chief antagonist of the filibuster, said in an interview. "There’s been a tremendous sea change in the Democratic caucus, saying, 'We were elected to solve problems, not to apologize because [Senate Republican leader Mitch] McConnell stopped us.' That excuse will not fly, nor should it."
Merkley said he has been gauging interest among senators about a "talking filibuster," which Manchin backed. The idea is to test obstructing senators by forcing them to talk in order to halt legislation — the West Virginian alluded to the actor Jimmy Stewart in "Mr. Smith Goes to Washington."
Such a change would end the filibuster as it currently exists, while still allowing a determined minority to slow down or scuttle bills. It would also enable a resolute majority to outlast them.
Democrats have 50 votes in the Senate and would need every member on board to change the rules. But as Republicans are quick to warn them, they may live to regret the new precedent.
"Majorities come and majorities go. But the essence of the Senate is the filibuster on the legislative calendar. Change that and you change the Senate — and America — forever," McConnell told reporters, rejecting any alteration to the rule. "The status quo on this issue is exactly where we ought to be."
As McConnell noted, Manchin and Sen. Kyrsten Sinema, D-Ariz., were the two Democrats who spoke out against ending the filibuster during a January debate about its future. But they also didn't rule out making changes to it.
Manchin made clear Sunday on NBC's "Meet the Press" and Wednesday on Fox News that he isn't calling for new exemptions to the filibuster for some issues, saying, "I will never forsake my belief that the minority should have input."
But he said there should be a higher bar to obstruct.
"People have to make sure that they’re willing to show — it’d be great, don’t you think, if someone was down there telling you why they’re objecting?" Manchin said on Fox News.
This week, Sen. Bob Casey, D-Pa., and Sen. Catherine Cortez Masto, D-Nev., also endorsed a talking filibuster. Others have said they're open to fully ending the filibuster, including Sen. Amy Klobuchar, D-Minn., who has a reputation as a moderate.
The issue of voting rights will be a momentous test of Democrats' willingness to keep the filibuster, as Republican-led state legislatures around the country, including Georgia, move to pass a wave of restrictive election laws that experts say will disproportionately hinder Democrats' access to the ballot.
"Voting rights is preservative of all other rights. It's not just one legislative issue alongside others. It is the very basis upon which we get sent here to argue the case for the American people," said Sen. Raphael Warnock, D-Ga., whose January win in the historically red state put Democrats in the majority. "It is urgent. And therefore I think all options have to be on the table, in terms of Senate rules."
Talking filibuster: How would it work?
The details of any rule change would be critical, Merkley said.
Under current rules established in 1975, the onus is on the majority to find 60 votes to proceed on legislation. If 41 or more senators vote against it, the bill stalls and there's nothing the majority can do. Merkley calls it "a no show, no effort, silent, invisible" blockade.
A talking filibuster would flip that onus, requiring a group of 41 senators to hold the floor and take turns talking incessantly — to air their grievances with the legislation being considered.
Eventually, Merkley explained, one of two things will happen: The majority party will lose its nerve and pull the bill, or the number of senators present will fall under 41 and enable the majority to advance the bill with a three-fifths majority.
Manchin's remarks came in a week when Republicans unified in opposition to President Joe Biden's $1.9 trillion Covid-19 relief package, despite its high popularity, which made some Democrats pessimistic about striking big bipartisan deals on matters like immigration and infrastructure.
"This was a pivotal week," said Adam Jentleson, a former Senate Democratic leadership aide and author of the book "Kill Switch," which argues that the filibuster is crippling American democracy. "Manchin's comments were certainly encouraging, but the most important thing may be the fact that zero Republicans voted for the American Rescue Plan. I think that drives home the need for reform more than anything else."
As Democrats bask in the glow of the Covid-19 stimulus victory, they face a daunting choice about what's next as the filibuster stands in the way of Biden's agenda, such as hiking the minimum wage, tackling climate change, overhauling criminal justice and bolstering Obamacare with a public option. The Covid-19 bill could go around the filibuster as it was budgetary; most other bills won't qualify.
Senate Majority Leader Chuck Schumer, D-N.Y., said this week he'd call votes on two House-passed bills aimed at closing gaps in background check rules for buying guns, "and we will see where everybody stands."
When asked by NBC News if a talking filibuster is the way forward if his priorities fall short of 60 votes, Schumer punted.
But he kept the door open, suggesting that failure isn't an option.
"All I can tell you is that we need big, bold action. And we have to figure out the best way to get it," Schumer said in an interview. "If Republicans will work with us, great. But we've got to get it done. Period."