Democratic presidential nominee Joe Biden has signalled he is open to the Senate eliminating the filibuster, making it possible for the majority party in that chamber to pass legislation without any bipartisan support.
Such a rule change in the Senate — which touts itself as the "world's greatest deliberative body" for its methodical approach to legislating and its rejection of simple majority rule — would revolutionise how laws are made in the US.
“It’s going to depend on how obstreperous [Senate Republicans] become” if he is president and they are in the minority, Mr Biden said, the New York Times reported.
Mr Biden, who spent 35 years in the Senate representing Delaware before becoming vice president in 2009, has historically supported the filibuster as a way to gather bipartisan consensus on legislation and force cooperation between the two parties. He expressed optimism that he and Senate Republicans could still negotiate legislation in good faith without doing away with the filibuster.
“But I think you’re going to just have to take a look at it,” he said.
Since 1975, Senate rules have required 60 senators to vote to "invoke cloture" — that is, end debate — on any piece of legislation and bring it up for a vote. That, in effect, has meant a bill needs 60 senators to support it for it to pass — not the simple 51-vote majority outlined in the US Constitution.
During the 1950s and 1960s, when ending a filibuster required two-thirds of the chamber to vote to end debate, Democratic senators from southern states used it to shut down several civil rights bills.
South Carolina Senator Strom Thurmond once filibustered for 24 hours and 18 minutes, the longest speech in Senate history, to kill the Civil Rights Act of 1957.
For years, Senate Democrats have flirted with purging the filibuster from its convoluted set of rules. In 2013, then-Democratic Senate Majority Leader Harry Reid of Nevada convinced his party to do away with the 60-vote threshold for judicial nominees since opposition from the Republican minority was causing a logjam. The rule change allowed Democrats to confirm dozens of President Barack Obama's judicial appointments before Republicans retook the majority in 2015.
Senate Majority Leader Mitch McConnell, who has since exploited the new confirmation process to ram through 53 circuit-court judges and two Supreme Court Justices nominated by President Donald Trump in just three and a half years, has vociferously opposed Democratic calls to end the 60-vote threshold for legislation.
"On legislation... the Senate’s treasured tradition is not efficiency but deliberation," the Kentucky Republican wrote in an op-ed for the Times last summer.
"One of the body’s central purposes is making new laws earn broader support than what is required for a bare majority in the House," Mr McConnell wrote, arguing that while the legislative filibuster does not appear in the Constitution's text, it is "central to the order the Constitution sets forth" and is in line with what America's founding fathers would have wanted.
"It echoes James Madison’s explanation in [Federalist Paper 62] that the Senate is designed not to rubber-stamp House bills but to act as an 'additional impediment' and 'complicated check' on 'improper acts of legislation.' It embodies Thomas Jefferson’s principle that 'great innovations should not be forced on slender majorities,'" Mr McConnell wrote.
Mr Biden's newfound openness to ending the legislative filibuster follows recent signals from several Democratic senators with strong bipartisan records who have said Republican opposition to a Biden presidency could force them to rethink their support of the 60-vote threshold should they win back the Senate this November.
Democrats must net a four-seat pick-up or a three-seat pick-up plus the presidency to take back a majority.
“I will not stand idly by for four years and watch the Biden administration's initiatives blocked at every turn,” Delaware Senator Chris Coons told Politico in June, a marked shift in tone from his previous airtight support of the filibuster.
Just three years ago, Mr Coons and Maine GOP Senator Susan Collins penned a letter urging Mr McConnell and Senate Minority Leader Chuck Schumer to "preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate."
Mr Coons insisted this June he would “try really hard to find a path forward that doesn't require removing what's left of the structural guardrails" if Mr Biden wins the presidency.
"But if there's a Biden administration," he said, "it will be inheriting a mess, at home and abroad. It requires urgent and effective action."
Mr McConnell issued a warning to Democrats not to take such a drastic step, reminding them how much it can hurt when the political winds, which are constantly shifting, are not in your party's favour.
“The important thing for our Democratic friends to remember is that you may not be in total control in the future, and anytime you start fiddling around with the rules of the Senate, I think you always need to put yourself in the other fellow’s shoes and just imagine what might happen when the wind shifts,” Mr McConnell told reporters in June about recent Democratic comments on ending the filibuster.
Even if Republicans retain a Senate majority and the White House after the 2020 elections, the rule will remain, Mr McConnell vowed, much to the chagrin of Donald Trump.
“I consistently said no to the current president on that issue, and he tweeted about me a number of times, which I greatly appreciated,” Mr McConnell said, joking about the president's tweets of frustration earlier this year blasting him for adhering to the 60-vote norm.
Register for free to continue reading
Registration is a free and easy way to support our truly independent journalism
By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists
Already have an account? sign in
Join our new commenting forum
Join thought-provoking conversations, follow other Independent readers and see their replies