Democrats Weigh Deploying ‘Nuclear Option’ to End Senate’s Legislative Filibuster if They Win the Majority - Should the 60 Vote Threshold Be Abolished?

What’s the story?

• Democrats are considering making a drastic change to how legislative business is conducted in the Senate if they win enough seats to secure a majority in this fall’s elections by invoking the “nuclear option” to eliminate the legislative filibuster.
• The legislative filibuster, known as a cloture motion, requires three-fifths of the Senate (typically 60 votes) to vote in favor of limiting further debate on a bill to 30 hours before a passage vote, which typically only requires a simple majority, can occur. The cloture motion was developed to limit senators’ ability to use a talking filibuster to delay Senate proceedings. The use of cloture motions has proliferated in recent decades: from 1917 to 1970 the Senate only voted on 49 clotures motions, but from 2013-2018 there were 509 cloture votes.
• The 60 vote threshold is significant because it’s relatively rare for one party to control 60 seats in the Senate, something which occurred most recently for Democrats during a brief period in 2009-2010. As a result, the cloture motion serves as a key obstacle for the Senate to clear controversial legislation. In the current Congress, Democrats have used cloture votes to block debate on police reform, coronavirus relief, and abortion bills.
• Majority Leader Mitch McConnell (R-KY) on Tuesday warned Democrats against ending the legislative filibuster if they win the majority, and reminded them that he has resisted calls from President Donald Trump to ditch the legislative filibuster:

“I think the important thing for our Democratic friends to remember is that you might not be in total control in the future. Any time you start fiddling around with the rules of the Senate, I think you always need to put yourself in the other fellow’s shoes and just imagine what might happen when the winds shift… I consistently said no to the current president on that issue and he’s tweeted about me a number of times.”

Where do Democrats stand on ending the legislative filibuster?

• For a push by Democrats to end the legislative filibuster to succeed, they would first need to secure a majority in the Senate. They currently control 47 seats, so if they hold every seat they would need to pick up four seats for an outright majority, or three seats if a Democratic president & vice president are elected. Senate Minority Leader Chuck Schumer (D-NY) said in 2019 that “nothing’s off the table” with regard to ending the legislative filibuster. 
• Wherever a potential Democratic senate majority ends up in terms of seats controlled, it’s unlikely the caucus would unanimously support ending the legislative filibuster because of the realization that they likely won’t be in the majority forever ― and many sitting Democrats have expressed support for the legislative filibuster relatively recently.
• Sen. Joe Manchin (D-WV) on Tuesday tweeted, “I have never supported a repeal of the filibuster and I don’t support one now. I am willing to consider solutions that promote collaboration so the Senate is able to be a productive body again. But repealing the filibuster would result in even more partisanship.” Manchin was also one of 61 bipartisan senators to sign on to a letter in 2017 that called for the preservation of the legislative filibuster.
• Sen. Chris Coons (D-DE), who led the drafting of that letter with Sen. Susan Collins (R-ME), said told Politico he would “try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails” but that he “will not stand idly by for four years and watch the Biden administration’s initiatives at every turn.”
• Sen. Jeff Merkely (D-OR) is leading the charge for ending the legislative filibuster, and is discussing proposals that could strengthen the minority’s ability to offer amendments according to The Hill.
• Coons & Merkley are among the Democratic senators who are up for re-election and previously supported preserving the filibuster. The other Democratic signatories of the Collins-Coons letter to preserve the legislative filibuster who are up for re-election include Sens. Cory Booker (D-NJ), Ed Markey (D-MA), Jack Reed (D-RI), Jeanne Shaheen (D-NH), and Mark Warner (D-VA).
• Other Democratic signatories to the Collins-Coons letter include Sens. Michael Bennet (D-CO), Sherrod Brown (D-OH), Maria Cantwell (D-WA), Tom Carper (D-DE), Bob Casey (D-PA), Tammy Duckworth (D-IL), Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), Maggie Hassan (D-NH), Mazie Hirono (D-HI), Tim Kaine (D-VA), Angus King (I-ME), Amy Klobuchar (D-MN), Patrick Leahy (D-VT), Bob Menendez (D-NJ), Brian Schatz (D-HI), Debbie Stabenow (D-MI), Jon Tester (D-MT), and Sheldon Whitehouse (D-RI).
• All told, that makes 7 Democratic senators who are up for re-election that oppose ending the legislative filibuster plus another 20 who aren’t facing re-election in 2020. Barring numerous reversals of that position if Democrats secure a Senate majority in the 117th Congress, or unexpected support from Republicans, that puts efforts to end the legislative filibuster well short of the votes needed to succeed in that effort.

How would using the “nuclear option” on the legislative filibuster work?

• Ordinarily, changes to the Senate rules require 67 votes to succeed, but there is another route to changing how the Senate does business ― known as the “nuclear option”. The purpose of using the nuclear option is to establish a new precedent in the Senate without a formal rules change, and it’s considered “nuclear” not only because it would result in a new precedent, but because the process used to establish the new precedent would violate past precedent. 
• To deploy the nuclear option, a Senate majority brings up motion to proceed or cloture motion on a rules change proposal for a vote that requires a simple majority to succeed.
• A point-of-order is then raised that their motion is out of order because it doesn’t comply with existing Senate rules & precedents. Either the minority in opposition to the change or the majority itself can raise the point-of-order.
• The presiding chair then rules on the point-of-order. A chair could uphold the point-of-order, finding it out of order on the basis of existing precedent, which would prompt an appeal by supporters of the change. Or the chair could rule in favor of the change contrary to past precedent, which would likely prompt an appeal by opponents of the change. Alternatively, the chair could put the procedural question directly to the Senate with making a ruling, although that’s less common in the modern era of the Senate.
• A motion to appeal the ruling of the chair would be subject to a potential talking filibuster that could delay or derail proceedings. But if the chair rules against past precedent in favor of the change and opponents raise the appeal, supporters of the change could move to lay the appeal on the table, and because a motion to lay on the table is non-debatable, it can’t be filibustered and the vote would occur immediately. 
• Whether a vote is held on the motion to appeal the ruling of the chair, or on a motion to lay on the table, a simple majority is required to succeed so that supporters of the rules change would prevail and establish the new precedent.
• After the new precedent is established, the Senate returns to its legislative business with the change in effect.

When & how has the nuclear option been deployed?

• In 2013, then-Senate Majority Leader Harry Reid (D-NV) and Democrats voted along party-lines to reduce the number of votes required to invoke cloture for all non-Supreme Court nominations to executive and judicial branch positions from a three-fifths majority to a simple majority.
• In 2017, McConnell and Republicans voted along party-lines to lower the number of votes required to invoke cloture on Supreme Court nominations from a three-fifths majority to a simple majority prior to the confirmation of Justice Neil Gorsuch.
• In 2019, McConnell & Republicans voted along mostly party-lines to shorten post-cloture debate on nominations to district courts & lower tier executive branch positions (such as a deputy assistant secretary) from a maximum of 30 hours to 2 hours. The change doesn’t apply to nominations to the Supreme Court, appeals courts, Cabinet-level executive branch positions, or certain federal commissions which are all still subject to 30 hours of post-cloture debate like legislation is.

— Eric Revell

(Photo Credit: Ralph Alswang | Center for American Progress via Flickr / Creative Commons)