WASHINGTON — The fate of the Senate filibuster is on the ballot in the 2024 election as Democrats rally around weakening the 60-vote threshold to pass major legislation like codifying abortion rights and bolstering federal voting rights.
If President Joe Biden is re-elected and Democrats control the Senate, they would probably have the votes to change the filibuster. The cause has become a litmus test in the party, backed by senators who will remain in office next year, as well as the party’s candidates in key races that’ll decide which party controls the majority.
Meanwhile, Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, I-Ariz., who cast decisive votes in 2022 to block Democrats from weakening the filibuster, are retiring. Manchin said he has “grave concerns” the filibuster will survive after he leaves.
Under the current filibuster, 60 votes are needed to begin and end debate on most legislation, meaning 41 senators can effectively veto bills. Sen. Jeff Merkley, D-Ore., said he’s optimistic Democrats will have enough support for “reforming the filibuster and imposing a talking filibuster” in the next Congress, so a minority can’t block bills without continuously holding the floor and talking.
“Unfortunately, two folks decided to support the no-effort obstruction, as opposed to the talking filibuster,” Merkley told NBC News. “But I think everyone who’s staying is pretty supportive of going through the process of making the Senate work again.”
It would have far-reaching impacts in establishing majority rule in a chamber that has normalized requiring a supermajority to pass most bills over the last two decades, with a key exception for temporary changes to taxes and spending. Such a change would be celebrated by progressives, who call the modern filibuster an undemocratic chokepoint for popular legislation.
Proponents call the filibuster a rare tool to encourage bipartisanship and promote stability in lawmaking. But even moderate Democrats say the modern 60-vote threshold makes the Senate dysfunctional.
“I’ve been here just over three years, and I’ve never seen an organization with rules like the United States Senate,” said Sen. Mark Kelly, D-Ariz., a former astronaut. “If NASA had these rules, the rocket ship would never leave the launchpad. So as changes to the rules come up, I’ll evaluate it based on the merits.”
Many Republican senators insist they’d preserve the filibuster, even if they capture control of the White House and Congress. They include conservative Sen. Ron Johnson, R-Wis., who said he “absolutely” supports the 60-vote rule.
“We’re united in that. We realize the tables will turn, and if they had ultimate control, this country would be over,” Johnson said, calling it a bulwark against “socialist and radical left policies.” He said that if Donald Trump wins the presidency, he could use executive power to secure the border if Democrats filibuster immigration bills.
Democrats' path to an anti-filibuster majority
Changing the filibuster rules would require a simple majority in the Senate. If Democrats end up with 50 or more seats and have Vice President Kamala Harris to break a tie, they'd most likely have the votes.
With Manchin retiring, West Virginia’s open seat is all but certain to flip to the GOP this fall. But Democrats have a plausible — albeit difficult — path to hold their remaining 50 votes.
It requires holding seats in red-leaning Montana and Ohio, as well as in the purple states of Pennsylvania, Michigan, Wisconsin, Nevada and Arizona.
The likely Democratic nominee to replace Sinema in Arizona, Rep. Ruben Gallego, promises that if he is elected he would support “waiving the filibuster to codify Roe v. Wade.”
Democratic candidates for open seats in California (Rep. Adam Schiff), Michigan (Rep. Elissa Slotkin), Delaware (Rep. Lisa Blunt Rochester) and Maryland (county executive Angela Alsobrooks) have all called for eliminating the filibuster.
“I am, like, loud and proud on reforming the filibuster so we can vote on gun laws, voter access, women’s rights,” Slotkin told constituents in a video she posted on Instagram. “All those things could be voted on tomorrow if we only needed 51 instead of 60.”
Alsobrooks, who won the Democratic primary in Maryland on Tuesday, says on her website: “Angela firmly believes that the filibuster in the Senate should be eliminated.”
Her GOP opponent, former Gov. Larry Hogan, said he’s “a big supporter of the filibuster.”
Schiff said he’d prefer major swings in policy to the current gridlock, emphasizing that killing the filibuster is the only way to pass abortion rights, gun safety and voting rights measures and to mitigate climate change. He said he doesn’t worry about Republicans’ using a filibuster-free Senate to reverse liberal gains when they take power.
“The Republican policies are so reactionary, backward and unpopular that should they ever really be in a position to put them into effect, they’ll be voted out of office in a heartbeat,” he said.
And the Democrats running in the red-leaning states of Texas (Rep. Colin Allred) and Florida (former Rep. Debbie Mucarsel-Powell) have also championed exceptions to the filibuster to establish federal abortion rights. The GOP is favored in those states, but Democrats can hold the majority without them.
Biden has said he supports carve-outs to the filibuster to pass voting rights and abortion rights legislation. The White House declined to comment beyond his public remarks and didn't say whether that would extend to other priorities, like gun legislation.
Trump has pushed to nuke the filibuster
If Trump and Republicans sweep the election, GOP senators would probably face pressure from Trump to do away with the filibuster. He repeatedly demanded that they nuke the 60-vote rule during his term as president. Senate Minority Leader Mitch McConnell, R-Ky., refused in 2017 and 2018. Although McConnell is stepping down as GOP leader, it's unclear whether Trump would be more successful this time.
Sen. Thom Tillis, R-N.C., said he expects a push to kill the filibuster to toughen immigration laws if the GOP wins in November.
“Quite honestly, if we run the table politically in November and we have control of both chambers and President Trump has the White House, it wouldn’t surprise me if getting additional tools to get the border under control would be used as an argument for nuking the filibuster,” Tillis told reporters.
But he said he would adamantly oppose that.
“The day Republicans vote to nuke it is the day I resign,” Tillis said, arguing that it would “destroy the Senate.”
Trump campaign spokespeople didn’t reply to requests for comment.
Sen. Josh Hawley, R-Mo., said he’s open to potential changes.
“Never say never, but I can’t think of anything that comes to mind immediately,” he said. “The filibuster has meant different things over time. And there are different ways to implement it. So we could talk about how the filibuster is structured. Do you have to hold the floor or not, etc. We could probably have a conversation on that.”
Sen. Ted Cruz, R-Texas, who faces a competitive re-election bid, said he’s committed to preserving the 60-vote rule even if his party sweeps the election and Democrats use it to stymie legislation.
“Yes,” he replied when asked.
Sen. Rick Scott, R-Fla., who also faces re-election this fall, said, “I believe in the filibuster.”
Even if Republicans have control and it threatens their agenda?
“I believe in the filibuster,” he repeated.
