5 wacky things Senate Democrats will do instead of ending the filibuster
How to legislate the hard way
It would take the Senate Democratic majority roughly five minutes to use the so-called "nuclear option," to end the Senate filibuster rule and pass any bill they want with a simple majority. The problem is a few Senate Democrats, like Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), refuse to do that. So the next two years in politics are going to be largely focused on the bizarre and often convoluted ways Democrats can pass their agenda without Republican support and without officially ending the filibuster. Here are five, ranked by likelihood.
1. Fire the parliamentarian
The Democrats' primary option will be passing laws with Budget Reconciliation, which can't be filibustered, but there are multiple catches. The first is that Congress can pass only one or two such bills a year. The second is every part of the bill needs to obey the Byrd Rule requiring provisions to be related to the budget. A provision is considered extraneous if it doesn't change federal spending or revenue, or if the change it produces is "merely incidental." If a provision is extraneous, it can be removed by a senator raising a point of order. So who decides if raising the minimum wage to $15 an hour is budgetary or merely incidental to the budget? The vice president with the advice of the Senate parliamentarian.
If Democrats don't think the Senate parliamentarian is taking an expansive enough view of what is or is not related to the budget, they can fire the parliamentarian and replace them with someone who takes a different view. This is, in fact, exactly what Senate Majority Leader Trent Lott (R-Miss.) did in 2001 the last time the Senate was split 50-50 and the Republicans wanted to move a bill via reconciliation.
2. Have Vice President Kamala Harris overrule the parliamentarian for reconciliation
What makes firing the parliamentarian weird is they technically have no official power in this matter. By tradition, the parliamentarian advises on what is or is not extraneous and that advice is followed, but technically the decision ultimately rests with the presiding officer. The presiding officer would be Vice President Kamala Harris, since she is president of the Senate.
Harris can simply ignore the parliamentarian and decide no provisions are extraneous. After all, basically every policy will have at least some impact on the federal budget. Senators can appeal her decisions, but it takes 60 votes to overrule her. As long as Harris and 41 Democrats want a provision included and 50 Democrats are prepared to vote for the final package, they can pass anything with reconciliation.
3. Decide certain issues aren't subject to the filibuster
Manchin has been very clear that he wants to keep the legislative filibuster because he thinks it promotes compromise, but it is possible the party might consider making some new special carve-outs. Several actions are already exempt from the filibuster. There are, of course, budget reconciliation bills, and senators also can't filibuster attempts to use the Congressional Review Act to overturn regulations. In 2013, Democrats removed the filibuster for most presidential appointments after Senate Republicans repeatedly blocked President Obama's nominees. Similarly, in 2017 the GOP got rid of the filibuster for Supreme Court nominees.
It is possible moderate Senate Democrats could be convinced to exempt other actions while keeping the legislative filibuster. Last month, when Senate Minority Leader Mitch McConnell (R-Ky.) was holding up the organizing resolution for the new Senate, it was suggested Democrats should use a mini-nuclear option to end the filibuster only for organizing resolutions. One could also make a compelling argument that statehood resolutions are not actually legislation so should be exempt from the filibuster. Or that reforms that relate only to the House of Representatives (ending gerrymandering, expanding the number of House seats, etc.) shouldn't be subject to the Senate filibuster. Or even something as small as just shortening the amount of senate floor time different procedural matters take.
4. Force the filibusterers to talk
As laid out in the Constitution, it only takes a simple majority to pass any bill in the Senate. The 60-vote threshold ostensibly exists only so senators can keep debating an issue (it takes 60 votes to end debate early). In theory, it is possible to also break a filibuster by forcing the opposition to talk. Under the Senate rules, each senator must be recognized to speak if they wish and can talk for as long as they are able, but they may only offer two speeches on each issue. Democrats could try to aggressively enforce this rule and bend norms, by setting a new precedent that any recognition of any senator for any reason is a "speech." Assuming each of the 50 Republicans want to take part in the filibuster and each can talk for 10 hours twice, that would be about 41 days of continuous debate. This would be a grueling process that would tie up the Senate for months, but if there were one or two bills Democrats really care about, it is a theoretical possibility. Democrats could try to reduce this waste of time further by declaring any pause in talking as the end of a speech and move to the final vote if another Republican is not immediately ready to talk.
5. Lock them in the Senate chamber
There is a reason the two-speech rule has rarely been enforced to try to break a filibuster. Senators can use other delay tactics, so they don't need to actually hold the floor in a grueling marathon of talking. Senate precedent holds that parliamentary inquiry and suggesting the absence of a quorum don't count as one of the two speeches. So to tie up the Senate, one senator just needs to constantly suggest the absence of a quorum, requiring a majority of senators to be gathered before anything further can be done.
Preventing a quorum was a tactic senators once used to stop bills from going forward. This is why in 1877 the Senate changed the rules to allow the Senate Sergeant at Arms and Doorkeeper to arrest senators and physically force them to come to the Senate. Democrats could in theory decide to re-interpret these rules to require the Sergeant at Arms to effectively lock all the senators in the chamber until the pending bill is voted for. This would turn a subsequent filibuster into a painful game of chicken hoping the other side slips up or breaks first.
All it takes is a determined majority
All of these ideas may seem weird and convoluted and even stupid, because they are. Of course, the same can be said about the United States Senate, and the only reason we are talking about these workarounds is because enough senators want to keep it that way.
The important thing is these are just some of the entirely viable ways for unified and determined Democrats to pass whatever they want with a simple majority. Ultimately, the rules of the Senate are whatever the vice president plus 50 senators say they are. So Democrats can get around any filibuster for policies they truly care about, even if they insist on "keeping the legislative filibuster." They can do it by bending the rules of reconciliation, or by turning the filibuster into some grueling months-long endurance challenge which eventually ends, or by redefining the filibuster in some completely new way. All it takes is the will and a plan.