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Explainer-Could Biden steer the U.S. Senate into changing the filibuster?

[October 23, 2021] By Susan Cornwell

WASHINGTON (Reuters) - U.S. President Joe Biden has sounded increasingly open over the past month to changing the Senate's filibuster tradition to bypass a Republican roadblock that has imperiled key aspects of the Democratic agenda.

After long opposing change, Biden, who spent 36 years in the Senate, said on Thursday the chamber should "fundamentally alter" the long-standing process requiring 60 of the 100 senators to agree on most legislation, which Republicans have used to block voting-rights bills and which brought the country perilously close to a crippling debt default earlier this month.

Democrats could use their razor-thin Senate majority to eliminate or change the rule, though it would require the agreement of all of their members, including moderates Joe Manchin and Kyrsten Sinema, who have voiced objections.

WHAT IS THE FILIBUSTER?

To "filibuster" means to delay action on a bill or other issue by talking.

The Senate filibuster first captured the American imagination in Frank Capra's 1939 movie "Mr. Smith Goes to Washington," when Jimmy Stewart's character spoke for more than a day, and more recently in 2013 when Texas state Senator Wendy Davis spoke for 13 hours to try to block a bill imposing new restrictions on abortion.

The popular image of a lone lawmaker mounting an impassioned hours-long argument belies the reality in today's Senate, where a mere threat is enough to initiate a filibuster and hold up a bill.

A filibuster can only be stopped if a supermajority of 60 senators votes to end debate in a process called cloture.

WHY IS THE RULE A PROBLEM FOR DEMOCRATS?

With just 50 senators in their caucus, Democrats currently can't overcome filibusters unless at least 10 Republicans vote with them.

Democrats were able to pass Biden's $1.9 trillion COVID-19 stimulus plan without a supermajority through another Senate maneuver called "reconciliation," with the help of Vice President Kamala Harris's tie-breaking 51st vote. But the rules limit the use of that process.

Though they did get 19 Republican votes for a $1 trillion package to revamp the nation's roads, bridges and other infrastructure, Republicans have blocked many other Democratic priorities, including a voting-rights measure.

Senate Republicans this year have used the filibuster to block voting rights legislation that Democrats want to counter new restrictions passed in Republican-led states by supporters of Donald Trump's false claims that his November 2020 election defeat was due to widespread fraud.

They are also warning that they could filibuster a vote later this year to avoid a catastrophic debt default. A prior roadblock on that measure prompted Biden earlier this month to say he was open to changing the filibuster.

But he went further at a CNN town hall on Thursday, saying he would support changing the rule to pass the voting rights measure "and maybe more," though he said he would not make any moves until after Congress passes a pair of bills that contain the bulk of his domestic agenda.

WHEN DID THE SENATE ADOPT THE FILIBUSTER RULE?

Although the Constitution makes no mention of filibusters, long-winded Senate speeches became an increasingly common tactic in the 19th century.

By 1917, most senators had had enough, agreeing that a vote by a two-thirds majority could end debate.

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President Joe Biden delivers remarks to honor the Council of Chief State School Officers' 2020 and 2021 State and National Teachers of the Year along with U.S. first lady Jill Biden at the White House in Washington, U.S., October 18, 2021. REUTERS/Leah Millis

But getting two-thirds of the Senate was hard, so filibusters continued. Notoriously, they were used by Southern senators who sought to block civil rights laws.

In 1975, the Senate reduced the requirement for limiting debate to three-fifths of the Senate - currently 60 senators.

In that decade, Senate leadership began agreeing to allow measures that were facing a filibuster to be put aside while the chamber acted on other bills.

The move was intended to prevent opposition to a single bill from bringing all work in the chamber to halt, but it also meant that the filibuster changed from an energy-draining maneuver involving lengthy speeches to a mere objection, or threat to object.

Over time the number of filibusters skyrocketed. A count of votes to try to overcome a filibuster, the nearest reliable proxy, shows 298 such votes in the 2019-2020 legislative session. That's up from 168 such votes in the previous two years. From 1969 to 1970 there were six.

CAN THE FILIBUSTER BE CHANGED?

There have already been changes.

In 2013, Democrats removed the 60-vote threshold for voting on most nominees for administration jobs, apart from the Supreme Court, allowing them to advance on a simple majority vote.

In 2017, Republicans did the same thing for Supreme Court nominees. Both the 2013 and 2017 changes were made by simple majority votes.

Several filibuster reform ideas have been floated that could stop short of ending it. They include an exemption just for voting rights bills, limiting the number of filibusters against any one bill or forcing those waging a filibuster to remain standing and speaking on the Senate floor until one side relents.

WHO OPPOSES CHANGE?

Senate Minority Leader Mitch McConnell, for one. At the start of this year he tried but failed to get an explicit promise from Democratic Majority Leader Chuck Schumer to protect the filibuster.

"Nobody serving in this chamber can even begin ... to imagine what a completely scorched-earth-Senate would look like," McConnell said in March, adding that Republicans would require votes on all parliamentary moves, drastically slowing the pace of business.

His move earlier this month to allow a vote temporarily raising the debt ceiling was in part motivated by a desire to protect the filibuster, according to aides and lawmakers.

(Reporting by Susan Cornwell; Editing by Scott Malone, Aurora Ellis and Jonathan Oatis)

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