Leahy backs end to silent filibuster but is less clear on other reforms
The Vermont Democrat, the longest sitting member of the Senate, has been reluctant to support some measures limiting debate. But he recently said he is on board with ending the silent filibuster.
VTDigger | October 2021
By Grace Benninghoff
As President Joe Biden’s legislative agenda remains imperiled by the Democrats’ tenuous hold over the U.S. Senate, liberal lawmakers and outside advocates have been calling for reforms to the filibuster — the storied Senate institution that allows a minority of members to block an up-or-down vote.
Just last week, Senate Republicans used the tactic to derail a Democratic effort to raise the nation’s debt ceiling and avoid default. That led Biden to tell reporters over the weekend that filibustering a debt-limit hike was “unconscionable.”
Sen. Patrick Leahy, D-Vt., a Senate institutionalist who served with Biden for decades, has wavered on filibuster reform in the past. But in an interview with VTDigger in August, Leahy declared his enthusiastic support for ending the silent filibuster.
Unlike the filibuster of the popular imagination — in which a senator holds the floor for hours at a time to stall legislation — the silent filibuster effectively allows any senator to demand 60 votes for a bill without stating their case in public.
“I absolutely agree with [ending the silent filibuster],” Leahy said. “If you’re going to filibuster, stay on the floor and do it. Otherwise it’s totally dishonest. Joe Biden and I have talked about that, and we totally agree.”
Biden made a similar case in March, wistfully recalling when senators “had to stand up and command the floor” to block a bill. The president has been reluctant to embrace more significant reforms. Last week, White House press secretary Jen Psaki indicated Biden would not favor changing the Senate rules to prevent the use of the filibuster on a debt-ceiling hike.
Leahy has also been reluctant to go further.
State Sen. Phil Baruth, D/P-Chittenden, said he understands why Vermont’s senior U.S. senator may be struggling with the issue.
“In the last 20 years he’s seen a lot of power shifts in the Senate,” said Baruth, who wrote a biography of Leahy.
“He’s gone from chair of the Judiciary Committee to in the minority to Senate president pro tem to chair of appropriations,” Baruth said. “Those are amazing shifts in fortune, so more than anybody he knows what it would be like to get rid of the filibuster and then have [Sen.] Mitch McConnell, [R-Ky.,] running the show. But McConnell has left — in all capital letters — no other option.”
Leahy’s precise position has, at times, been murky.
A spokesperson for the Vermont senator told the Washington Post in June, “Sen. Leahy opposes use of the filibuster as a tool for complete obstruction. It is supposed to encourage bipartisan compromise, not entrench partisan warfare.”
That led the Post to deem Leahy “open” to filibuster reform.
In an interview the next month with Vermont Public Radio, Leahy was asked if he would support carving out an exemption to the filibuster to pass voting rights legislation. He said that particular issue “is one thing that might trigger an exemption to the filibuster rule.” But, he continued, “keep in mind [that if] you make one exemption others will follow, especially if Republicans come back in power.” Leahy went on to argue that Democrats may suffer in the future without the filibuster as a mechanism to block Republican legislation.
“I’m perfectly willing to look into supporting a [filibuster reform] proposal, but keep in mind what goes around comes around. If we had not had the filibuster during the Trump era, we would have lost [the Affordable Care Act],” Leahy said at an Aug. 13 press conference.
Leahy’s fellow seatmate, Sen. Bernie Sanders, I-Vt., has called for the filibuster to be abolished altogether.
“The U.S. Senate is the only institution in the world where a vote of 59-41 can be considered a defeat instead of a huge victory,” Sanders tweeted June 1. “Enough is enough. Let us change the outdated rules of the Senate, end the filibuster and pass a bold agenda for working families with majority vote.”
Having been first elected in 1974, Leahy is the longest currently serving member of the Senate and has seen more filibusters than any of his colleagues. He has voted on three filibuster reform measures, according to spokesperson David Carle, twice for reform and once against.
Leahy himself is quick to bring up his exceptional experience with this issue.
“I’m the only senator in the U.S. who has voted twice for filibuster reform,” Leahy said, referring to his 1975 vote to reduce the number of votes required to overcome a filibuster from 67 to 60, and his 2013 vote to carve out an exemption for executive and judicial appointments.
Despite Leahy’s unique familiarity with the topic, he remains reluctant to offer other options for reform beyond the end to the silent filibuster.
“There are some ideas we’ll be discussing this fall in caucus. The worst thing would be 30-40 senators going off with different ideas,” Leahy told VTDigger. “We need something with support that we could live with if we’re not in the majority.”
The filibuster’s long history
The filibuster has often been depicted and dramatized in television and film. But in reality, the filibuster looks nothing like it does on TV.
It’s not Leslie Knope from “Parks and Recreation” rushing to city hall and talking overnight to halt a vote. It’s not Jimmy Stewart in “Mr. Smith Goes to Washington” filibustering his own expulsion from the Senate until he passes out on the floor.
In real life, the filibuster is much easier to execute today than it has been for much of American history. The late Sen. Strom Thurmond holds the record for the longest time speaking on the Senate floor as part of a filibuster. The South Carolina lawmaker lasted 24 hours and 18 minutes in 1957 when he tried to block the passage of the Civil Rights Act.
Thurmond, who was a Democrat at the time and later became a Republican, was so committed to stopping the legislation that he took steam baths in advance of filibustering in order to sweat out excess liquid to avoid having to leave for a bathroom break, but he had an intern on the Senate floor with a bucket just in case. He sustained himself on diced pieces of pumpernickel bread and cooked hamburger meat for the duration of his filibuster.
Today, members don’t even have to be physically present on the Senate floor to filibuster.
“Almost all filibusters are silent now. There’s no requirement that they come in and actually filibuster anything,” said Stephen Spaulding, senior counsel for public policy and government affairs at Common Cause, a nonprofit government watchdog group.
The intended purpose of the filibuster was to give the minority party more power so the majority couldn’t push through partisan legislation without meaningful resistance. How it worked originally was that during debate on a piece of legislation, a lawmaker could stand and talk on the Senate floor indefinitely to stop debate on a bill. The only way a filibuster would end was if either the speaking senator surrendered or if lawmakers voted 67-33 to invoke cloture — a legislative term for stopping debate and voting on legislation.
However, through a series of reforms and a shift in Senate culture, the practice has gradually changed.
In 1975, after the filibuster was used frequently to block civil rights legislation, the Senate decided to reduce the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators, or 60 of the Senate’s 100 members. Both Leahy, who was then in his first year in the Senate, and Biden, who was in his third, voted yes on the measure.
Another filibuster change that came out of the 1970s was a move to a “dual-track” filibuster, in which the Senate agreed that a filibuster would no longer hold up other Senate business outside of the blocked bill. This move also marked the advent of the silent filibuster. The idea was to make the filibuster less disruptive so even if a specific piece of controversial legislation was being held up, the Senate could move forward with other legislation such as the budget and other funding proposals. Now, when a bill is filibustered, senators can move on to other things.
“The issue of not even being able to start debate on a vote if one person objects to it and having to go through the cloture process to even start a conversation on something is problematic,” said Betty Keller, speaking on behalf of the League of Women Voters of Vermont.
What reform could look like
In order to change the filibuster, Democrats would have to set a new precedent. It would not come by way of a piece of legislation but rather through a swift, cohesive action.
Eli Zupnick, spokesperson for Fix Our Senate, a coalition of groups opposed to the filibuster, said that a new precedent could be set if a member claimed a chamber rule was being violated and the presiding senator agreed. If the senator who was presiding disagreed, then a roll call would be taken that could establish a new precedent by a majority vote.
In 2013 and 2017, this tactic was used, first by Democrats to carve out a filibuster exemption for executive and judicial nominees, and later by Republicans to do the same for Supreme Court nominations. This approach came to be known as the “nuclear option.”
While some senators — including Sanders — have pushed to abolish the filibuster altogether, others have advocated for a number of different reform options.
In each of Leahy’s three reform votes — in 1975 for lowering the requirement for cloture, in 2013 for an exemption for executive and judicial nominees, and in 2017 against the exemption for Supreme Court nominees — the Vermont Democrat voted with his party.
“Leahy more than anyone I can think of has seen the ups and downs of the majority-minority switches,” said Baruth, who thinks the senator could be reluctant to commit to reform because of concerns that doing so may leave Democrats without any power should they end up in the minority again.
Baruth also describes Leahy as “an institutionalist who believes in and loves the institution of the Senate with all his heart.”
While polling on Vermonters’ support for filibuster reform is not available, the nation as a whole is largely split — with about one-third of Americans approving of the tactic, one-third disapproving and another third reporting neutrality on the issue.
Leahy’s former chief of staff, Ed Pagano, believes Leahy would be open to a variety of reform measures, perhaps even beyond just an end to the silent filibuster, especially if it’s a way to get voting rights legislation through the Senate.
“He’s the leader in the Senate on the John Lewis Voting Rights Act, and he’s been in discussions with Sen. [Joe] Manchin,” Pagano said, referring to the West Virginia Democrat. “There’s been talk about if there might be an exception to the filibuster based on voting rights, that’s kind of step one to reform.”
Baruth agrees that Leahy would likely be amenable to filibuster reform if it were to come in the form of another exemption, more akin to what was passed in 2013 and 2017 than the sweeping reform of 1975.
“If they could get a talking filibuster and carve out an exception for voting rights, that would be a solution Leahy would probably much prefer because it would allow him not to go down in history as the person who brought the gavel down on the filibuster completely,” Baruth said.