Senate Democrats to Deploy 'Nuclear Option' for Filibuster Reform Over Elections Bill

What’s the story?

• Senate Democrats are preparing to hold a series of votes on Wednesday that will result in an attempt to use the “nuclear option” to change Senate rules regarding the legislative filibuster to make it easier to pass election reform legislation on party-line votes with a simple majority. 
• Democrats’ effort to deploy the nuclear option is expected to fail in the evenly-divided chamber due to opposition by a majority of senators, including all 50 Republicans and at least two Democrats ― Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ). It will play out after the latest iteration of Democrats’ election reform proposal, the Freedom to Vote: John R. Lewis Act, fails along party-lines well short of the threshold needed to overcome the legislative filibuster.
• Democratic leadership is proposing to change the legislative filibuster’s 60 vote threshold to limit debate (or “invoke cloture”) on most legislation. It would still allow the minority party to block legislation by using a talking filibuster that could be brought to an end by 60 votes, but if the minority party stops their talking filibuster the bill could then pass with a simple majority vote. Democratic leaders argue the changes are necessary to ensure the passage of federal legislation to prevent states from passing laws they believe are racially-motivated voter suppression.
• Those efforts to persuade Manchin and Sinema appear to have fallen flat, as they have persisted in expressing opposition to proposals that would create exceptions to legislative filibuster’s 60 vote threshold. They believe such exceptions would inevitably lead to further exceptions being created until effectively all legislation is being passed on simple majority votes; and they fear that in turn would create wild swings in many areas of public policy whenever control of the presidency, Senate, and House changes hands between the two major parties. 
• Manchin spoke on the floor ahead of Wednesday's votes and explained, "Allowing one party to exert complete control in the Senate with only a simple majority will only pour fuel on the fire political whiplash and dysfunction that is tearing this nation apart."

How does the “nuclear option” work?

• The nuclear option is effectively a method by which a simple majority of senators can change the Senate’s precedents for how a bill or nomination should be considered. It’s considered the “nuclear option” because formal changes to Senate rules require 67 votes, so it circumvents and departs from that requirement by making a change to the precedent with a simple majority.
• The majority party in the Senate deploys the nuclear option by raising a point of order to make the desired change after a related vote occurs. Then the presiding chair either rules that the change is out of order, triggering an appeal by the majority party, or if the chair rules favorably then the minority party raises a point of order that the change is a violation of Senate precedent.
• Appealing the ruling of the chair or raising a point of order triggers a vote in which senators are effectively asked to decide what the precedent is with a simple majority vote.

When has the nuclear option been used lately?

• The first significant change to the legislative filibuster in modern times occurred in 2013 when then-Senate Majority Leader Harry Reid (D-NV) and Democratic senators voted along party-lines using the nuclear option to lower the threshold for invoking cloture on all non-Supreme Court nominations to executive and judicial positions from 60 votes to a simple majority.
• The second occurred in 2017 when then-Senate Majority Leader Mitch McConnell (R-KY) and Republican senators voted along party-lines to lower the cloture threshold for Supreme Court nominations from 60 votes to a simple majority.
• A third, lesser-known use of the nuclear option occurred in 2019 when McConnell and Senate Republicans used it to shorten the period of post-cloture debate on nominations to federal district courts and lower-tier executive branch positions (such as a deputy assistant secretary) from a maximum of 30 hours to 2 hours. This change didn’t apply to nominations to the Supreme Court, appeals courts, Cabinet-level executive branch positions, or to certain federal commissions ― all of which remain subject to a maximum of 30 hours of post-cloture debate like most legislation is.
• Contrary to some reporting, the Senate did not create a new permanent exception to the filibuster for debt limit legislation when it was considered recently. The Senate effectively created a one-time exception by including an expedited process for subsequent debt limit legislation in a bill that also postponed Medicare cuts. On December 9th, 2021, the Senate cast a bipartisan vote of 64-36 to invoke cloture on the legislation to delay Medicare cuts and create the expedited process for the future debt limit increase bill, then it passed the bill on a bipartisan 59-35 vote later that day. The Senate then considered the debt limit increase bill using the expedited process on December 14th, when it passed along party-lines.

RELATED READING

• Biden Urges Senate to Eliminate Filibuster to Clear Way for Democrats’ Election Reforms (1/12/22)
• Schumer Signals Vote on ‘Nuclear Option’ to Eliminate Senate’s Filibuster (1/11/22)
• Manchin Rejects Democrats’ ‘For the People Act’ & Reiterates Support for Preserving Senate’s Filibuster (6/7/21)
• Democrats Flip-Flop on the Filibuster After Winning the Senate Majority (3/30/21)
• Senate Nears Powersharing Deal After Moderate Dems Vow to Preserve Filibuster (1/29/21)
• Should Senate Democrats Eliminate the Legislative Filibuster? (1/25/21)

— Eric Revell

(Photo Credit: Senate Democrats via Flickr / Creative Commons)