March 6, 2021

Congressional historian Norm Ornstein was Lawrence O'Donnell's guest Thursday night to talk about filibusters.

"His new article in the Washington Post is entitled 'Democrats cannot kill the filibuster, but they can gut it," O'Donnell said.

"Norm, let's get to your two biggest ideas. Let's start with the present and voting way of determining the threshold here and how that actually used to be the rule."

"So, Lawrence, the last time the filibuster was changed for legislation in a fundamental way in 1975, the lore is that they lowered the threshold from two-thirds to three-fifths. But it didn't work that way," Ornstein said.

"It was before this, two-thirds of those present and voting and now it's three-fifths of the entire Senate. As you said, the burden now is on the majority. Now, if you have a 'present and voting' voting standard and you go around the clock, if the minority doesn't show up, if, say, 20 members don't show up, then under the three-fifths standard you only need 48 senators to invoke that cloture, stop the debate. And if it's a absolute standard, if you decided to go around the clock, the minority doesn't have to show up at all.

"A couple of members could be there -- one to deny the absence of a quorum or to keep from getting a unanimous consent agreement. It's the majority that has to show up. So if you move this back to a present voting standard, make it three-fifths of those present and voting, then Democrats can shine a spotlight on an important issue like HR1, democracy reform, make them go around the clock for two weeks."

"Make the 87-year-olds like Chuck Grassley and Dick Shelby and Jim Inhofe have to sleep on the lumpy cots all night long. If they don't show up, then you have got the opportunity to break that filibuster."

"Yeah, and this for Joe Manchin, this takes you back to an even earlier precedent. You are still listening to what Joe Manchin says he wants and try to work within that and say, okay, here is a Senate precedent that preexists the one they are using now. Let's go to the other idea, a new idea, which is switching the burden. Now it requires 60 votes to proceed and you're saying what if we switched that to 40 votes in order to basically continue debating the bill."

"I'd like to push the envelope a little bit, make it 45 votes. But the idea here is the burden is supposed to be on the minority. What Joe Manchin and Kyrsten Sinema have talked about, both of them, is this idea that you need to give the minority some skin in the game. The old filibuster, the one that they have lionized, it was about a minority feeling so intensely about an issue that they would take on a great burden and go to great lengths. Now they don't have to lift a little finger."

"Put the burden back on them. Every vote, the cloture comes if they can't muster the 41 or 45. They have to be there constantly. They all have to be around. If you make them debate on the floor while all of this is going on, you add to that burden. You are not eliminating the rule. you are restoring what it was supposed to be, what they have lionized. It's not perfect. Nothing is. But it gives us a fighting chance of getting things like democracy reform, the John Lewis Voting Rights Act and other things that are very important to us, and the fact is, as you said earlier, we're not going to eliminate eliminate the rule. We are not able to do it with 50 senators with a couple who are dug in against it. We have to find a different way to operate," Ornstein said.

"I am not opposed to continuing lobbying Senator Manchin, but what you are saying is, okay, if that doesn't work, don't give up. There are some other ways that you can soften what we currently have. I know you talked to Al Franken about this idea. He told me what he is telling you about it, which is he used to sit on the Senate floor during these situations and say to Republicans, well, I have to be here this weekend and they would say, we don't. We're leaving because they don't have to be there to sustain their blocking maneuver and they get to go often on the weekend and the Democrats are sitting there trying to muster 60 votes, which they simply can't muster."

"Of course, the way it works now, you can filibuster everything. Little bills, big bills, take up a lot of time on the floor because it costs you nothing. If we change the burden back to the minority, they are only going to do it in a handful of cases. And when they do, we are going to get a public spotlight shined on them that's going to make it very different. Imagine if, for instance, you brought up the Voting Rights Act that would now apply to everybody, not just those five states, to satisfy the Supreme Court. And you make them go around the clock explaining why they are against voting rights when most of them voted for the original Voting Rights Act. You can make a difference this way. and we have a chance, I think, to get to all of those senators and get the 50 to make a difference.

"If we don't, then we are not going to get that legislation. You push Joe Manchin and you're gonna end up with Majority Leader Mitch McConnell."

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