Schumer and Dems have a plan to dodge the filibuster and pass Biden's big-spending agenda



Senate Majority Leader Chuck Schumer (D-N.Y.) believes he has found a way to use the Senate's rules to end-run around the filibuster and pass major pieces of President Joe Biden's legislative agenda with a simple majority vote.

Major pieces of Biden's agenda like the $15 federal minimum wage, amnesty with citizenship for 11 million illegal aliens, or a new federal assault weapons ban are unlikely to muster enough Republican support in the 50-50 Senate to overcome the threat of a legislative filibuster. Democrats need 60 votes to close debate on a pending bill, and as long as they are unwilling to compromise their radical progressive agenda they won't find 10 Republicans willing to lend their support to it.

But multiple reports indicate Senate Democrats think they've found a way to bypass a potential filibuster and that they will try it to advance Biden's $2 trillion infrastructure proposal.

The plan involves using budget reconciliation — a somewhat obscure legislative rule that a majority can use to pass bills with budget-related items with a simple majority vote.

Under the current interpretation of the Senate's rules, budget reconciliation can only be used once every fiscal year when Congress passes a budget resolution. Last year, Congress failed to pass a budget resolution, so Democrats used their fiscal year 2021 budget reconciliation to pass the $1.9 trillion COVID-19 relief bill. They can still use the FY 2022 budget reconciliation this year to pass another piece of Biden's agenda, be it infrastructure or tax increases, a climate bill, or additional health care reform.

Democrats lack the votes to end the filibuster outright. So to pass more bills, they will attempt to revise the current budget resolution and argue that the revision makes it possible to use budget reconciliation again to pass another bill.

As a Senate aide to Schumer explained to CBS News:

... a Schumer aide said the majority leader is asking the Senate parliamentarian whether he can revise the current budget resolution to allow for another reconciliation process to pass the infrastructure package.

Top Schumer aides have asked the parliamentarian about using Section 304 of the Congressional Budget Act of 1974 to allow for a second reconciliation process this fiscal year. The parliamentarian is an expert on the obscure procedures of the Senate, and can determine whether certain actions are permitted under Senate rules.

Schumer aides argue that Section 304 would allow for a second reconciliation process to be used this fiscal year, because it says "the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to."

If the parliamentarian agrees with Schumer's argument, the Democratic majority in the Senate (with Vice President Kamala Harris' tie-breaking vote) could use budget reconciliation as many times as they please to pass any bill that is related to the budget. But even should the parliamentarian disagree, Schumer still has options. The Democrats can pass the FY 2022 budget resolution this year and the FY 2023 budget resolution next year, giving them an opportunity to use budget reconciliation at least twice more during Biden's first term.

There is also the nuclear option. If the Democratic majority votes to overrule the parliamentarian's interpretation of the Senate rules, they can create a new precedent that becomes the Senate rule on budget reconciliation. In the short term, that would mean Democrats can advance more bills without the threat of a filibuster. But in the long run, they may come to regret doing so when Republicans have a majority and recapture the White House.

Biden wants to return to a 'talking filibuster'. The Senate could do that now, no rule change required



President Joe Biden would not outright say on Thursday whether he supports ending the legislative filibuster in the United States Senate as progressive activists demand Senate Democrats take drastic action to pass Biden's agenda.

Biden held his first press conference as president, fielding questions from reporters on various topics. Asked to address how many votes should be required to break a filibuster — the Senate rules currently require 60 votes to close debate on an issue — Biden said he wasn't sure how many votes it would take to change the Senate's rules.

"If we could end it with 51, we would have no problem," Biden told reporters, noting that "it's going to be hard to get a parliamentary ruling that allows 50 votes to end the filibuster, the existence of a filibuster."

"But it's not my expertise in what the parliamentary rules and how to get there are," Biden added, an incredible claim from a man who spent nearly 40 years as a Democratic senator from Delaware before becoming vice president and subsequently president of the United States.

Most Democrats in recent weeks have intensified their campaign to end the legislative filibuster, citing inevitable Republican obstruction of major parts of President Biden's agenda and even resorting to claims that the filibuster, in the words of Sen. Elizabeth Warren (D-Mass.), "has deep roots in racism, and it should not be permitted to serve that function, or to create a veto for the minority."

Progressives have claimed the filibuster — a Senate rule that simply permits senators to keep debating a question (legislation, nominations, etc.) considered on the floor for as long as they are able to speak — is a relic of the Jim Crow era and a tool white supremacists used to block civil rights legislation. In advancing these arguments, Democrats often neglect to mention how frequently they filibustered legislation under President Donald Trump and other Republican presidents. Now that a Democratic president is in office and Republicans are using the filibuster to stall legislation, many Democratic senators have reversed their previously held positions on it.

Biden said the Democrats' "preoccupation with the filibuster is totally legitimate," but assured reporters the slim Democratic majority in the 50-50 Senate, where Vice President Kamala Harris holds a tie-breaking vote, will continue to advance progressive priorities "while we're talking about what we're going to do about the filibuster."

He also for the first time stated his preference for having the Senate return to a "talking" filibuster.

"I strongly support moving in that direction," Biden said.

As a United States Senator, Biden was a fierce advocate for the filibuster. In a 2005 speech, Biden said ending the filibuster, "would eviscerate the Senate and turn it into the House of Representatives."

"It is not only a bad idea, it upsets the constitutional design and it disservices the country," Biden said. "No longer would the Senate be that 'different kind of legislative body' that the Founders intended. No longer would the Senate be the 'saucer' to cool the passions of the immediate majority."

He added that, "the Senate ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment."

What is a filibuster anyway?

The so-called Senate filibuster rule is formally known as the cloture rule — Rule 22 of Senate procedure. It's a rule that provides senators with the procedure to end debate on a question considered on the floor.

Traditionally, debate on a question in the Senate will continue for as long as each individual senator wants it to, or for so long as they are able to hold the floor and speak about the issue at hand. The senate cannot vote on the question up for debate until each senator declines to seek recognition to speak.

If no one wants to speak, the Senate must vote on the question. But as long as a senator wishes to continue debate, the senate must debate. Hypothetically, if a senator were able to talk about a bill forever, that individual senator could prevent the full Senate from moving on to a vote on the bill for as long as he could speak. That's what happens in the great movie, "Mr. Smith Goes to Washington."

An instance when a senator has recognition and refuses to yield the floor on a question is known as a filibuster.

When an enterprising "Senator Smith" is being annoying and filibustering, the cloture rule permits a three-fifths majority of senators, 60 of them, to vote to end debate on a question and move on to a vote. The cloture rule is designed to break a filibuster. The Senate twice voted to change Rule 22 and lower the 60-vote requirement to a simple majority vote — once in 2013 and again in 2017, both times for the confirmation of presidential nominees. Now Democrats want the same rules change for cloture on legislation.

It is crucial to understand that there is no actual 60-vote requirement in the Senate to advance legislation. This is a misconception. The filibuster is not a veto.

If no senator seeks recognition to speak during debate on legislation, the Senate must move on to a simple majority vote on whether to pass the bill. The reason that so many bills are filibustered and so many cloture votes are invoked in response is largely because under the current practice of the senate, filibustering requires neither time nor energy.

The current practice of the senate is that when a cloture vote fails, instead of continuing debate until every senator is no longer willing to speak, the question is tabled and the senate moves on to consider another question.

This is known as a "two-track" system, it's a practice that was adopted in the 1970s, and it's the real reason why there's a de facto 60-vote requirement for the Senate to move on to a vote on any major piece of legislation. Instead of forcing senators who want to filibuster to continue to hold the senate floor and speak for as long as they are able, the Senate agrees to put the debate aside and move on to something else.

The Senate doesn't need to change the rules

If Democrats and Republicans were serious about advancing legislation in the Senate, they can currently do so, even with a filibuster. No rule change required. They just have to enforce the other rules of the Senate that everyone likes to conveniently ignore.

Senate Rule 19 contains a provision known as the "two-speech rule." Simply, the rules state that when a senator holds the floor to speak, "no Senator shall speak more than twice upon any one question in debate on the same legislative day" without the consent of the rest of the Senate. When senators want to debate a bill, if this rule is enforced, they get two speeches during the debate. No more. Once those speeches are used up by an individual senator, that senator can no longer participate in the debate.

If the two-speech rule were enforced, then any bill that is considered by the Senate would move on to a simple majority vote as soon as every senator gave two speeches on the bill. When a senator wants to filibuster, that senator would have to be physically present on the senate floor speaking for as long as he or she is able to. When the senator is unable to speak, their speech is used up and they have one left. When everyone is finished speaking because they don't want to debate or because they are too tired to continue, the Senate votes.

Say for example the Democratic majority wanted to pass an assault weapons ban but Republicans want to filibuster. If the Democratic majority refuses to table their bill after a cloture vote fails to end debate, they can force the Republican minority to hold the floor if the GOP wants to delay a vote on that bill.

The two-speech rule would give each Republican two speeches on the assault weapons ban. If they wanted to filibuster, they would have to attempt to continue speaking for as long as possible. Filibustering would require the minority to expend time on the floor and energy speaking to delay the bill. And because it's impossible to speak forever, the filibuster would eventually end. It's not a legislative veto, it's a delay tactic to encourage debate.

Once no senator seeks recognition to speak in the hypothetical debate on an assault weapons ban, either because they don't want to speak or because they've already used up their two speeches, the Senate would take up the bill in a simple majority vote.

The proposed rules change favored by Democrats would not end a "60-vote requirement" to pass legislation. No such requirement exists. It would just make it easier for partisan majorities in the Senate to cut off debate on bills that cannot reach bipartisan consensus because they are too controversial.



Sen. Ben Sasse calls 'B.S.' on Democrats claiming the filibuster is 'racist'

Sen. Ben Sasse calls 'B.S.' on Democrats claiming the filibuster is 'racist'



Senate Democrats do not have enough votes to end the legislative filibuster. But the issue won't go away, and progressive activists clamoring for President Joe Biden to enact a more progressive agenda are searching for midterm election candidates who will campaign on ending the Senate's 60-vote requirement to pass major pieces of legislation. Some have even begun to argue that the filibuster is racist.

In the face of the left's agitation to enact the so-called "nuclear option," Sen. Ben Sasse (R-Neb.) rose to speak on the Senate floor Tuesday, defending the filibuster, pointing out the Democrats' hypocrisy on the issue, and warning against the evils of partisan majority rule.

"This is a debate about nothing less than the nature and durability of American self-government," Sasse argued.

Sasse noted that Democrats, who hold a majority in the 50-50 Senate by virtue of Vice President Kamala Harris' constitutional power to break ties, have begun arguing for filibuster "reform" since President Biden assumed office. In recent weeks, it has become popular for some senators, like Sen. Elizabeth Warren (D-Mass.) to make the case that the filibuster "has deep roots in racism," being used as a tool by white supremacist senators to block civil rights legislation.

Warren and other Democrats, of course, did not make these arguments when President Donald Trump was in office and they were in the minority, and Sasse clobbered them with their hypocrisy.

"[Sen. Brian Schatz (D-Hawaii)] recently said that the filibuster is quote 'stupid' and 'paralyzing.' He also said 'it's time to trash the Jim Crow filibuster,'" Sasse recited. "But just four years ago when Donald Trump was elected and House Republicans were itching to have the Senate eliminate the filibuster because Republicans controlled the House, the Senate and the White House, Senator Schatz and a bunch of his colleagues actually penned a public letter that defended the filibuster and all of its quote, 'existing rules, practices and traditions,' close quote, precisely because it advanced the deliberative purposes of the Senate."

"I don't remember Senator Schatz then calling it the Jim-Crow filibuster when he wrote that letter, or when he was blocking Tim Scott's police reform legislation last year by pointing to the Senate super-majority requirement rules," he continued. "I don't remember Senator Schatz calling it stupid when he filibustered COVID relief in September and again in October under the Senate's current rules."

He continued:

I could give a hours and hours-long speech going through all the flip-floppers in this chamber who had one position 48 months ago and now have a completely different position. I don't need to name all of them, we should just say, "what changed?" We know what changed. The only thing that changed in the last two years is who's in power. When Democrats were in the minority, you were fierce defenders of this "indefensible Senate prerogative."

That was the language that was used. The filibuster was "standing between America and fascism," we heard. But now, when you've got the slimmest majority, actually it's just 50-50 and you need the VPs' motorcade to break a tie, now the filibuster is standing between you and some of your legislative goals, and therefore it needs to be tossed out. But when you were using the filibuster to halt Senator Scott's police reform bill, the filibuster was an essential American institution that forces compromise. But now that it can be occasionally used to resist a 51-50, straight majoritarian exercise of power, it's supposedly exclusively a relic of slavery and a tool of Jim Crow. It's nonsense and the people saying it know that it's nonsense. They use the same rule last year and you weren't racist when you used it last year. This is B.S. that has been focused grouped and particular bills are being used as the excuse to grab power that won't just be for this bill, it will be forever. It will be the end of the Senate. Was the filibuster really a tool of Jim Crow when it was used against Tim Scott last year? I don't think so. And I don't think any of you think so.

If somebody wants to come to the floor and repent of their racism of having used the filibuster last year, please do. But it isn't what it was happening so stop with the nonsense rhetoric that is just for an MSNBC soundbite tonight. It's sad to watch so many of my colleagues who know better be bullied into this position of short sightedness. And they do know better because many of you say it in private. And you're being bullied there by the fringes of your party. But part of the responsibility of being a U.S. Senator is to stand up to the extreme fringes of your party. Part of the responsibility of being a U.S. Senator is to say, "I know that people are angry, I know that people are yelling. I know that there are hot heads. But one of the jobs of the Senator and the job of hits body it tries to find a way to let cooler heads prevail."

Watch:

Mitch McConnell threatens Dems with 'scorched-earth' Senate if they nuke the filibuster

Mitch McConnell threatens Dems with 'scorched-earth' Senate if they nuke the filibuster



Senate Minority Leader Mitch McConnell (R-Ky.) issued a dire warning Tuesday to Senate Democrats as progressive activists demand an end to the legislative filibuster.

Speaking on the Senate floor, McConnell said the Senate would become a "100-car pileup" where "even the most basic aspects" of its business would be blocked to grind legislative progress to a halt should Democrats engage the so-called nuclear option to kill the filibuster.

"So let me say this very clearly for all 99 of my colleagues. Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like," McConnell said. "None of us have served one minute in a Senate that was completely drained of comity and consent. This is an institution that requires unanimous consent to turn the lights on before noon, to proceed with a garden-variety floor speech."

He continued: "I want our colleagues to imagine a world where every single task, every one of them, requires a physical quorum. Which, by the way, the vice president does not count in determining a quorum. This chaos would not open up an express lane for liberal change. ... The Senate would be more like a 100-car pileup, nothing moving."

The Democratic majority faces mounting pressure from progressives to kill the filibuster and pass major legislation to fulfill campaign promises from President Joe Biden. House Democrats have passed bills that would overhaul the U.S. election system, codify sexual orientation and gender identity protections into anti-discrimination law, criminalize unlicensed private firearm sales, among other progressive priorities that are unlikely to gain Republican support.

As long as any Republican filibusters a bill, the support of 60 senators is needed to overcome the filibuster, meaning most Democratic bills are dead on arrival in the 50-50 Senate.

Two Democratic senators, Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), have publicly opposed ending the legislative filibuster. But Manchin in recent weeks has signaled openness to making the filibuster "painful" to use, suggesting that senators who want to filibuster a bill be made to continuously hold the Senate floor by standing there or giving a speech for the entire duration of the filibuster (see: Mr. Smith Goes to Washington).

Others want the filibuster gone altogether. Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat, said Monday "everything is on the table" to pass President Biden's agenda, including the nuclear option.

"The filibuster is still being misused by some senators to block legislation urgently needed and supported by strong majorities of the American people," Durbin said. "This is what hitting legislative rock bottom looks like. Today's filibusters have turned the world's most deliberative body into one of the world's most ineffectual bodies."

Previously under President Donald Trump, Durbin and other Democrats claimed ending the filibuster "would be the end of the Senate." Sen. Mitt Romney (R-Utah) called attention to the Democrats' hypocrisy, reacting to calls to reform the filibuster by telling reporter Igor Bobic: "I don't recall them saying any of that over the last four years. And so anything they've said in the last four years I'm happy to adopt now. As I recall in the last four years they were very comfortable with how the filibuster worked."

McConnell reminded Democrats that he resisted President Trump's demands to end the filibuster and pass major components of his agenda into law. He also reminded them how they came to regret ending the filibuster for presidential nominations when Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney-Barrett were confirmed to the Supreme Court and said without the legislative filibuster things would go poorly for them the next time Republicans have control of Congress.

"Touching the hot stove again would yield the same result but even more dramatic. As soon as Republicans wound up back in the saddle, we wouldn't just erase every liberal change that hurt the country. We'd strengthen America with all kinds of conservative policies with zero input from the other side," McConnell said.

"How about this," he threatened. "Nationwide right to work for working Americans. Defunding Planned Parenthood and Sanctuary Cities on day one. A whole new era of domestic energy production. Sweeping new protections for conscience and the right to life of the unborn. Concealed carry reciprocity in all 50 states and the District of Columbia. Massive hardening of security on our southern border."