Despite renewed talk of ending the legislative filibuster in the Senate, proponents of the Equality Act appear to be relying on the challenge of finding 60 votes to advance the legislation as surprising figures like Sen. Kyrsten Sinema (D-Ariz) have dug in on support for Senate rules.
Ending the filibuster, which critics have decried as a relic of structural racism, has been a pursuit of progressive activists for some time, but hopes were piqued last week when President Biden in an interview with ABC News’s George Stephanopoulos said he’d be open to filibuster reform.
“I don’t think that you have to eliminate the filibuster, you have to do it what it used to be when I first got to the Senate back in the old days,” Biden said. “You had to stand up and command the floor, you had to keep talking.”
Asked whether that means he supports filibuster reform, Biden replied, “I am. That’s what it was supposed to be.”
“It’s getting to the point where, you know, democracy is having a hard time functioning,” Biden added.
Under the idea of going back to a “talking filibuster” as articulated by Biden, senators would actually have to continue to talk on the Senate floor to prevent the chamber from moving to the next agenda item if 60 votes aren’t present to invoke, as opposed to simply signaling they would continue to talk as they do in the current system.
Think of the iconic film, “Mr. Smith Goes to Washington,” where Jimmy Stewart as fictional Sen. Jefferson Smith filibustered to stop appropriations legislation that amounted to a dam scheme benefiting the political machine in his state.
Biden’s comments appear to echo statements from Sen. Joe Manchin (D-W.Va.), who has previously signaled he opposes ending the legislative filibuster, made recently when he suggested the filibuster should be more “painful” for senators to use.
Sen. Elizabeth Warren (D-Mass.) added fuel to the fire last week when she flat-out called the filibuster “racist.” Warren is on solid ground for her characterization of the filibuster, which appears nowhere in the Constitution or in documents of the Founders.
Instead, the filibuster was adopted over time in the Senate and made a regular tool in the 20th century. The late Sen. Strom Thurmond still holds the record for the longest single-person filibuster in the U.S Senate for speaking for 24 hours and 18 minutes straight in an effort to thwart the Civil Rights Act of 1957.
But the reality of eliminating the filibuster is complicated. Biden as president is chief legislator, but has no direct say on whether or not the Senate will keep the filibuster, nor do any individual senators. The filibuster as part of Senate rules would require a simple majority in the Senate to abolish.
Sen. Jeff Merkley (D-Ore.), the chief sponsor of the Equality Act, told the Washington Blade he’s open to filibuster reform to passing the legislation, but signaled through a spokesperson this week the plan for the time being is to find 60 votes.
“Sen. Merkley has long taken the position that we need to fix the broken Senate and restore its ability to pass important legislation by simple majority—including legislation like the Equality Act,” Martina McLennan, a Merkley spokesperson said. “Given the urgency of the Equality Act, the fact that conversations within the caucus about filibuster reform are still ongoing, and the past Republican support for bills like the Employment Non-Discrimination Act, Sen. Merkley is focused right now on meeting with his Republican colleagues and pushing to find 60 votes to get full equality into law as soon as possible.”
What does this mean for the Equality Act, which would expand the prohibition on discrimination against LGBTQ people under federal law? Supporters are going to have to find 10 Republicans who’d be willing to back the legislation to reach the 60 votes to invoke cloture and end a filibuster.
That means negotiations with Republicans like Susan Collins and Thom Tillis who have said they were open to the bill. But that could also mean concessions, like an expanded religious exemption or carve-outs from non-discrimination principles for transgender kids in school sports.
Merkley’s view may be a reflection of reality on the ground. In an article this week, Politico quoted multiple Democratic senators as being uncomfortable with the idea of eliminating the filibuster, although some were open to reform. Senate Majority Whip Dick Durbin (D-Ill.) is quoted as saying “there are several senators who have expressed concerns” within the Democratic caucus about a change with respect to the filibuster.
Senate Minority Leader Mitch McConnell (R-Ky.) has already made threats to make life in the Senate a living hell for Democrats if they end the filibuster. In a chamber that requires unanimous consent to do anything, that could mean needing a majority vote to do something as simple as turning the lights on.
But the senator most infuriating progressive activists who want to see the Equality Act passed is Sinema, who in her latest incarnation as a conservative Democrat has opposed ending the legislative filibuster. Critics have said Sinema’s opposition constitutes the only out bisexual in the Senate essentially blocking LGBTQ rights legislation after having won endorsements from LGBTQ political groups for her election.
Neither Sinema nor Manchin have responded to repeated requests from the Blade in recent weeks to comment on whether they’re OK with keeping the filibuster even if it means a continued hold on the Equality Act. (Manchin has been reluctant to support the Equality Act in any event, having stated concerns two years ago about schools having to implement policies to accommodate transgender students.)
LGBTQ organizations seeking to pass the Equality Act, which are reluctant to discuss openly their strategy on the legislation, are keeping silent on the issue of the filibuster as it pertains to the legislation. The Human Rights Campaign declined to comment for this article. The LGBTQ Victory Institute also signaled through a spokesperson no comment on the basis the organization doesn’t take policy positions.
But not all negotiators are being as quiet. One LGBTQ policy advocate who’s part of negotiations on the Equality Act and spoke to the Washington Blade on condition of anonymity for greater candor urged supporters to consider filibuster reform as a way to get LGBTQ civil right legislation to Biden’s desk.
“This is the best opportunity we have ever had to pass the Equality Act, but we don’t know how long it is going to last,” the advocate said. “We cannot let this moment slip away. All options to pass the Equality Act in this current Congress must be on the table, including changing the 60-vote, supermajority requirement in the Senate.”
Students of LGBTQ history remember the filibuster has been an obstruction to advancing LGBTQ rights years before. At the start of the Obama administration, the late Sen. John McCain successfully filibustered efforts to repeal “Don’t Ask, Don’t Tell” in the military before it was decoupled from a defense policy package and passed after year-long debate in the lame duck session of Congress.
Meanwhile, progressive activists continue to champion the idea of ending the filibuster as the only means to ensure LGBTQ civil rights legislation, and other items Biden promised as part of his agenda, reach the president’s desk.
Michelangelo Signorile, a progressive activist who has championed the idea of ending the filibuster, said Sinema and LGBTQ organizations would be to blame if the Equality Act doesn’t pass as a result of a refusal to end a filibuster.
“There is no way the Equality Act is getting 60 votes,” Signorile said. “Some Republicans are making noise now about ‘compromises,’ particularly around trans girls and sports or religious exemptions — both of which are unacceptable. But these senators are stalking horses to stall things because even if those unacceptable modifications were made it’s hard to see how it gets 60 votes. The filibuster must be reformed or ended, and Kyrsten Sinema, if she doesn’t change her position, will have sold out her own people and will have harmed us enormously. Groups like the Victory Fund and HRC must publicly demand she change her position or publicly pull all support of her.”