Talking Points

Biden tells Democrats to make the Senate work again

President Biden endorsed a drastic reform to the Senate filibuster in an interview with ABC News Tuesday night. "I don't think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days," he said. "You had to stand up and command the floor, you had to keep talking."

This may seem like a minor change, but in fact it would basically eliminate the filibuster as it is known today. Many don't realize this, but as former Senate staffer Adam Jentleson explains in his book Kill Switch, executing a filibuster today only requires one single staffer to reply to an email. This ease of use is the main reason why virtually every piece of normal legislation is filibustered.

Biden did not say precisely what reform he would endorse (and the details would matter a lot), but two options that Democrats are reportedly passing around are:

1. Allowing a filibuster to be broken with three-fifths of senators present on the floor, which implies that Republicans would need to keep 34 senators present at all times to keep one up, or

2. Requiring 41 senators to be constantly present to maintain a filibuster, instead of requiring 60 to break one.

Either one of these options — and especially the second one — would be extremely burdensome for the obstructing minority. Nobody likes staying up for days on end, and especially not senators, who are usually elderly and tend to like spending a lot of time at home or on vacation (witness Ted Cruz).

Now, it would be better to simply get rid of the filibuster altogether and run the Senate along majority lines. But this reform would go a long way. Republicans would almost certainly not bother for most legislation, and it would be possible for a determined majority to wait them out on big bills like H.R. 1 or a green infrastructure package, even if they tried.