Between this and yesterday’s post, which you should read now if you missed it, he’s making some awfully provocative noises lately about filibuster reform that … may or may not mean anything. One move to which he clearly does seem open is shifting from the current filibuster, which allows the minority to block legislation with 41 votes against cloture, to an old-school “talking filibuster” in which the minority is forced to retain control of the floor by speaking indefinitely. Changing the filibuster from a de facto minority veto of bills to a delaying tactic would be a big deal in how the Senate operates. The question is how far Manchin and his centrist colleague, Kyrsten Sinema, would be willing to go to formalize that change:
— Axios (@axios) March 8, 2021
The other move he discussed yesterday was expanding the rules of budget reconciliation to non-budgetary matters like election reform. Under reconciliation, only 51 votes are needed to pass a bill; the “Byrd rule,” however, requires that bills bear directly on the budget in order to qualify for reconciliation procedures. Senate Dems could overrule that, which would mean potentially that all sorts of legislation currently subject to a GOP filibuster might conceivably be passed by simple majority. Manchin seemed to entertain the possibility of going that route in order to pass H.R. 1, the House’s voting-rights bill, during his “Meet the Press” interview and was ultimately noncommittal. But if he and Sinema do end up getting rid of the Byrd rule by extending reconciliation to non-budgetary bills, it would be an era-defining change to how the Senate functions. The filibuster would technically remain on the books but it would no longer pose a meaningful obstacle to passing bills with 51 votes. It wouldn’t be “nuked” as a procedural matter so much as simply made irrelevant.
Yesterday Axios asked Manchin about Biden’s next big legislative priority, one that does bear on the budget more directly than voting rights do. What about infrastructure? If Sleepy Joe drops a $4 trillion blockbuster in the Senate’s lap, would Manchin insist that the rules of the filibuster apply to that package, giving the GOP a veto over it? Or would he be willing to pass the bill on a party-line 50/50 vote under reconciliation? I’ll definitely let Republicans have their say, said Manchin — for awhile. Uh, what?
Manchin said that with just a few concessions, it would have been possible to get some Republicans on the COVID relief package that passed the Senate this weekend on a party-line vote. And he said he’ll block Biden’s next big package — $2 trillion to $4 trillion for climate and infrastructure — if Republicans aren’t included.
“I’m not going to do it through reconciliation,” which requires only a simple majority, like the COVID stimulus, Manchin said. “I am not going to get on a bill that cuts them out completely before we start trying.”
Asked if he believes it’s possible to get 10 Republicans on the infrastructure package, which could yield the 60 votes needed under normal Senate rules, Manchin said: “I sure do.”
Manchin said the infrastructure bill can be big — as much as $4 trillion — as long as it’s paid for with tax increases. He said he’ll start his bargaining by requiring the package be 100% paid for.
What does that mean, “before we start trying”? Obviously, Manchin’s saying that he won’t sign off on a bill written by the White House that’s aimed from the start at winning exclusively Democratic votes. He wants the White House to at least try to reach a compromise with 10 GOPers. But what constitutes “trying”? Recall that Biden and Ron Klain had a meeting with Susan Collins, Romney, and several other Senate Republicans at the start of the COVID relief process. But they couldn’t find common ground so Biden finally said “to hell with them” and pushed a bill more palatable to Democrats, for which Joe Manchin ultimately provided the 50th vote.
Is that all Biden needs to do in order to give Manchin the comfort he’s seeking on infrastructure? Hold some token discussions with Republicans in the Oval Office before deciding that they’re unmovable and Dems need to go it alone? Is there a particular amount of time Manchin wants negotiations to go on, or is it a qualitative matter of wanting to see a certain degree of earnestness by the White House in reaching a compromise? I hate to be the one to tell him, but there’s no way there’ll be 10 Republican votes for another $4 trillion in spending that does it on the back of tax hikes, including repealing the Trump tax cuts for wealthy Americans. I’m sure Biden will humor Manchin and give him some political cover with his Republican constituents by meeting with Collins and Murkowski et al. if it’s that important to him, but it’s exceedingly unlikely that this bill will get GOP votes.
So what does Manchin do once that becomes clear? It sounds from the excerpt like he’s willing to hold off on reconciliation for a time, to give the GOP a chance to negotiate, but ultimately he has a procedural gun pointed at their heads. Either they take what Biden’s offering them and the bill passes with 60+ votes or they hold out and Manchin decides in frustration that it’s okay to pass the bill via reconciliation after all, in which case only 51 are needed. That’s a terrible predicament for the GOP since it means having to choose between allowing a terrible bill brimming with Democratic priorities to pass and joining with Dems to pass a somewhat less terrible but still pretty terrible bill which Republicans will co-own.
Needless to say, the only way the filibuster will continue to matter is if Manchin is willing to tank major Democratic programs if Republicans won’t deal with Biden on them. And he’s been very coy about saying that plainly over the last 48 hours.
Making his complicated position a bit more complicated is the fact that the president of the United States, whose agenda depends on defeating Republican filibusters, sounds less eager to modify the filibuster than Manchin himself does:
“[Biden’s] preference is not to make changes to the filibuster rules,” Psaki said at a briefing with reporters. “And he believes that with the current structure that he can work with Democrats and Republicans to get work and business done. He’s also happy to hear from Sen. Manchin and others who have ideas about how to get the business done for the American people.”
Psaki was asked multiple times about whether Biden would support ending the filibuster, or enacting changes that would make it more difficult to block legislation. In each case, Psaki indicated the president was opposed to tweaking the filibuster…
When reporters noted the filibuster could hold up legislation on issues like voting rights and civil rights, Psaki argued that such bills should be able to garner bipartisan support.
Sleepy Joe doesn’t even want to shift from a nuclear filibuster to a “talking filibuster”? If not, COVID relief is going to be the last major bill his administration passes.
I think Psaki’s just being coy. She never flatly says that Biden won’t endorse changing the filibuster rules. She says it’s not his “preference,” which is in keeping with his campaign message that he’s uniquely positioned after decades as a senator to broker compromises with Republicans there. I think the White House is prepared to condone filibuster reform (if not outright eliminating the filibuster), but not yet. We’re not even 50 days into Biden’s presidency and his first major bill just made it through via reconciliation, after all. *If* McConnell roadblocks infrastructure and H.R. 1 and immigration reform, all of which is likely, that may build enough frustration among Americans to give the White House and Schumer some political cover to start talking about tweaking the filibuster rules. But they can’t do that until the GOP has actually begun obstructing things or else Biden’s “bipartisan” chatter during the campaign will be revealed for the sham that it was. Psaki’s not saying “no” to Manchin’s ideas, in other words, she’s saying “ask me again later.” We’ll check back this summer to see if their position has changed any.