The "Talking Filibuster" Boomlet

When Joe Manchin said on multiple Sunday shows that he was open to reforming the filibuster to make it more "painful" for filibusterers by requiring them to talk, a "talking filibuster" boomlet was born. Nevada's Catherine Cortez Masto has also come out in favor of the "talking filibuster," and opponents of the filibuster are celebrating on Twitter and elsewhere. However, this boomlet could be misleading in a few ways.

 Despite the press attention he got with this statement, Senator Manchin has long been a proponent of the "talking filibuster." For instance, he voted in favor of rules reform requiring it in 2011. The real question for Manchin is not whether he supports the "talking filibuster" but whether he is willing to reverse his longstanding opposition to the nuclear option to impose filibuster reform. As recently as 2019, Manchin boasted of his consistent opposition to the nuclear option and called a use of it "a betrayal of the people we represent." It's one thing if Manchin merely wants to work through regular order to achieve a bipartisan approach to filibuster reform; it's another if he goes along with a party-line use of the nuclear option.

 Manchin said that he wanted to make it "harder to get rid of the filibuster," but any use of the nuclear option reinforces the argument that the majority of the Senate can eliminate the filibuster and any other Senate rule on a whim. As Bill Scher recently noted, going nuclear to impose a "talking filibuster" makes it much more likely that the filibuster will soon be nuked entirely.

The appeal to a "talking filibuster" can itself be misleading, too. The "silent filibuster" much bemoaned by opponents of the filibuster is an invention of the Senate majority and depends upon the assent of the majority leader. Prior to the 1970s, many filibusters were "talking filibusters" because the Senate's business ran on a single track. Filibustering one bill froze the Senate in place. To make things more convenient for the Senate majority, Mike Mansfield and Robert Byrd formalized the practice of multiple tracking; if one bill was filibustered, the majority could let that filibuster stand and then simply pivot to another bill. This made it easier for the majority to cover more issues, but it also radically diminished the costs of filibustering. Unlike cloture (which is codified by the Senate rules), the practice of multiple tracking is a discretionary practice on the part of the majority leader. Chuck Schumer could restore the "talking filibuster" tomorrow.

Moreover, some proponents of the "talking filibuster" pitch this as a return to the old practice of filibustering (memorialized in Mr. Smith Goes to Washington). However, some "talking filibuster" proposals would decidedly weaken the power of the minority to filibuster compared to the old talking filibusters. The "talking filibusters" of the days of old were basically wars of attrition. The filibusterers had to go through the ordeal of filibustering and proponents of cloture actually had to sit through it. If enough members of the majority were not there, the filibusterers could simply declare the absence of a quorum and cause the Senate to adjourn. (For much of the period between 1917 and 1975, imposing cloture required a vote of two-thirds of senators present and voting. Post-1975, cloture was changed to three-fifths of the whole Senate, which shifted the onus of imposing cloture to opponents of a given filibuster--cloture requires 60 votes no matter what.)

Some "talking filibuster" proposals, however, remove those burdens from the majority. For instance, a 2013 "talking filibuster" proposal by Tom Udall would have made it out of order for anyone (other than the majority leader or his or her designee) to ask whether there is a quorum during a filibuster more than once every 48 hours. This would mean that the majority would be free to go about its business while the filibusterers mounted their rhetorical resistance. Whatever the merits or flaws of that change, it is decidedly not a return to the talking filibusters of old.