Democrats tee up filibuster reform by forcing issue on immigration, voting rights: Reporter's Notebook

Why a failed vote to break a filibuster is essential to transforming the filibuster

Let’s describe this process as "ripening" an issue.

Expect Senate Democrats to use a potential standoff over the debt ceiling, voting rights and even the parliamentarian’s decision that immigration reform doesn’t qualify for a budget bill as a way to make the case to modify the filibuster.

This is a gambit to ripen the issue of filibuster reform among Democrats. But, also, as it pertains to immigration. Liberals want to test the limits of stuffing immigration provisions into a budget bill. The immigration fight is not completely over yet. Senate Parliamentarian Elizabeth MacDonough decided immigration didn’t fit in a fiscal bill. Democrats will petition MacDonough again  with another proposal – and, simultaneously try to blame her for all of their ills if she rules against them. Again.

But this entire enterprise is truly about emboldening Democrats to eventually modify the filibuster.

To wit: 

Republicans may very well filibuster a bill designed to avoid a government shutdown and lift the debt ceiling. House Democrats approved the plan Tuesday night on a party line vote. However, Senate Democrats could likely pass this bill on their own – perhaps with a tiebreaking vote from Vice President Harris – if no filibuster existed in the Senate.

Senate Majority Leader Chuck Schumer, D-N.Y., meets with reporters before a key test vote on the For the People Act, a sweeping bill that would overhaul the election system and voting rights, at the Capitol in Washington, Tuesday, June 22, 2021. (AP Photo/J. Scott Applewhite)

Senate Majority Leader Chuck Schumer, D-N.Y., meets with reporters before a key test vote on the For the People Act, a sweeping bill that would overhaul the election system and voting rights, at the Capitol in Washington, Tuesday, June 22, 2021. (AP Photo/J. Scott Applewhite) (AP Photo/J. Scott Applewhite)

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Democrats had to resort to trying to shoehorn immigration policy into the $3.5 trillion social spending plan because any other legislation on immigration would face a filibuster. A reminder that overcoming a filibuster requires 60 yeas.

Senate Majority Leader Chuck Schumer, D-N.Y., hopes to bring up a voting rights bill in the Senate soon. But that could face a filibuster. You need 60 votes to end a filibuster to start debate on a bill and 60 votes on the back end to extinguish a filibuster. 

The same may happen in the Senate if the House approves a bill codifying Roe v. Wade. Granted, there are some pro-choice Democrats who will reject that in the Senate. But Democrats will try to present this bill as facing a legislative dead-end because of the filibuster. 

Democrats may ultimately fail in their effort to wedge immigration policy into the social spending plan.

But they have a chance at implementing a special carve-out for the filibuster on voting rights.

Let’s dive down the rabbit hole:

Let’s say Schumer attempts to put a voting rights bill on the floor. Sen. Joe Manchin, D-W.Va., says he’s on board. But you need 60 yeas to overcome a filibuster just to call up the bill for debate. Then, you need 60 votes on the back end to terminate debate on the entire bill and go to a final vote. So that’s two filibusters.

Who those 10 Republicans are who would support the voting rights bill are far from clear. It’s more than likely 10 GOP votes don’t exist.

So what does that get Senate Democrats?

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A failed procedural vote to try to overcome a filibuster.

And, parliamentarily, that is exactly what Senate Democrats need, procedurally, to transform the filibuster.

There have been lots of machinations in recent days about Senate Democrats engineering a special carve-out for the filibuster on an issue like voting rights. In other words, all legislative bills would need 60 votes to overcome a filibuster – except those which deal with voting.

It’s a monster to change Senate rules – let alone, alter the Senate filibuster rule. But it’s much easier to establish a new Senate precedent. In fact, the Senate does much of its work via precedent. 

A failed vote to break a filibuster is essential because, parliamentarily, the Senate is prohibited from continuing debate on that issue. The Senate has unlimited debate. But not after a failed vote to break a filibuster. 

However, what is in order at that stage is a roll call vote, subject to a simple majority, to set a new precedent, that it only takes 51 yeas to overcome a filibuster, on voting rights bills.

This, in Senate parlance, would be "Nuclear Option III." Democrats would build on the model of the Senate executing Nuclear Options I and II in 2013 and 2017 respectively. All the Senate does is vote to overrule the advice of Senate Parliamentarian Elizabeth MacDonough that it doesn’t take 60 votes to turn off a filibuster on a voting rights bill. A simple majority, with Vice President Harris casting the tie-breaker, is all they need. The Senate doesn’t change the rules. It simply establishes a new precedent, with the Senate voting, with 51 yeas, to overcome the ruling of the Parliamentarian.

An empty House of Representatives Chamber on Capitol Hill in Washington. (Photo by Brooks Kraft LLC/Corbis via Getty Images)

An empty House of Representatives Chamber on Capitol Hill in Washington. (Photo by Brooks Kraft LLC/Corbis via Getty Images) (Getty Images)

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There seems to be more energy among Senate Democrats to perhaps "modify" the filibuster for voting rights than on other issues. You may ask why Senate Democrats don’t just go around MacDonough on immigration or DC statehood, via a conceivable "Nuclear Options IV" or "Nuclear Options V"? The first problem, is that on a regular legislative bill, Democrats don’t have 50 votes for immigration reform. And, if they wanted to override MacDonough and stuff immigration into the $3.5 trillion bill, they need 60 votes (!). That’s because budget reconciliation is controlled by the special budget process. Therefore, 60 votes are required to "waive the Budget Act" and include something in a reconciliation bill which otherwise, doesn’t qualify.

So much of this is about incrementalism. Democrats are trying to "ripen" some degree of filibuster reform – by forcing the issue on immigration and voting rights in the coming days. 

That could tee up a "Nuclear Option" where the filibuster is modified or reshaped.

But, it’s unclear if the votes are there to support a Nuclear Option. If the Senate had the votes for any of these gambits, we’d know it. The Senate would have voted by now to change things.

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The left increasingly abhors the Senate filibuster. Liberals crow that the filibuster is blocking advancement of key components of the Democratic agenda: voting rights, statehood for Washington, D.C., and Puerto Rico, potentially the Democrats’ $3.5 trillion social spending plan, gun control legislation and the codification of Roe v. Wade into law. 

That’s true on some issues. False on others.

Democrats pushing potential filibuster reform has two audiences: it’s an effort to show liberals they don’t have the votes to upend the filibuster. But this is also a pressure point on moderates. Democratic leaders hope that those who are so opposed to modifying the filibuster will grow so frustrated that they’ll be willing to throw caution to the wind and change things to pass their bills. 

We’ll know soon if this is the season for filibuster changes to ripen.