Two or perhaps three Democratic Senators–Manchin and Synema and perhaps one other–are reluctant to overturn the filibuster. That reluctance could be overcome by Republican obstruction of critical policy needs–COVID-19 relief, funding for a massive vaccination campaign, help with health care and housing–that are critical to the states of these Senators. But even then, Senators who have publicly opposed filibuster reform might be concerned about changing their position publicly.
So here are two steps that go part way to filibuster reform.
First, we can change the rules for the reconciliation process. The reconciliation process allows Congress to move, once every session, a budget resolution under which changes in laws that affect the budget–including taxation and appropriations–without being subject to a filibuster.
Critical legislation has been passed by both sides under reconciliation resolution in the last 15 years including the ACA and the Trump Tax Cut.
There are, however, limitations on what Congress can do with th reconciliation process. Any laws that do not produce a change in outlays or revenues or that increases the deficit beyond a ten year “budget window” or that changes social security will be ruled out of order if included in a budget resolution. And only one reconciliation bill can be passed per budget cycle. (Because the reconciliation process was not used for the current fiscal year, the Senate could use it twice in 2021, once for the current fiscal year and once for the fiscal year that begins in October.)
These limitations on reconciliation are why, after the Democrats lost their filibuster proof majority in 2010 upon the death of Ted Kennedy, the final version had to be based on the far inferior Senate version of the bill than the House version, or as we had hoped at the time, a version that came out of a conference committee, since some components of the bill, such as insurance regulations, could not secure 60 votes in the Senate and could not be passed by through reconciliation. The limitations on reconciliation is also why some provisions of legislation sunset after ten years, to avoid adding to the deficit in subsequent years. This provision could stymie efforts to expand health and housing benefits this year that were not paid for by tax increase or cuts to other programs at the end of the budget window.
The Byrd rule, however, is part of Senate rules and can be changed by them. A few change would make reconciliation a more useful process:
1. Eliminate the no deficit beyond the budget requirement.
2. Broaden the meaning of change outlays or revenues to include indirect as well as direct changes. This would, for example, make it possible to pass a minimum wage increase under the reconciliation process. Indeed, almost any economic policy could be said to have indirect affects on the budget and would be eligible for inclusion under reconciliation.
3. Allow for more than one reconciliation bill for each budget cycle. Republicans would certainly oppose these changes and would try to filibuster them. But the “nuclear option” for changing Senate rules by a simple majority–under which the filibuster itself would be reformed–is available for Democrats to use for this puporse.
Loosening the reconciliation process would enable the Senate to do more with only a simple majority of votes, but it would still stand in the way of non-economic legislation. For example the John Lewis Act–a restoration of provisions of the Voting Rights Act ruled unconstitutional by SCOTUS, as well as an expansion of voting rights protections could not be passed by reconciliation.
So here is where we must take a major step to filibuster reform. Instead of requiring 60 votes to invoke cloture, let’s require the Senate to find 40 or 45 votes prolong debate after a motion for cloture.
This may seem like a minor change but it would require Republicans to keep most of their caucus near the floor whenever Democrats were trying to end debate. That would make filibustering more painful again–as it was before filibustering became an every day matter in the Senate–both because it would interfere with other business would keep the Senators that oppose cloture near the floor at all times and because it would allow for public debate on each attempt to end debate, bringing public pressure to bear on the Senate if it attempts to block popular legislation.
This proposal would allow the filibuster to continue but in the far more limited form that existed before the Senate decided to make filibustering cost-free by allowing regular Senate business to occur when a group of Senators was trying to end debate on some legislation.
Neither of these proposals are ideal. I still firmly believe that the filibuster–which was not part of the original design of the Constitution and goes far beyond the other protections on minority rights built into the onstituion–should be done away with. (And keep in mind that the protection for minority rights has, for most of our history, been protection for white supremacy and and is deeply questionable.)
But these proposals would get us much of the way there towards unblocking the Senate and restoring majority rule in it without forcing a few Democratic Senators to take a step they (wrongly)oppose. Indeed it goes far enough that the it would only take another very small step towards ending the filibuster once and for all when one of the parties abuses it.