Could the nuclear option get rid of the filibuster entirely? Checking Trump's tweet

The U.S. Capitol is illuminated on Jan. 19, 2018. (AP/J. Scott Applewhite)
The U.S. Capitol is illuminated on Jan. 19, 2018. (AP/J. Scott Applewhite)

As lawmakers and the White House struggled to resolve the differences that produced a government shutdown, President Donald Trump revived an idea on Twitter that he had proposed in the past -- eliminating the filibuster in the Senate.

‘Great to see how hard Republicans are fighting for our Military and Safety at the Border," Trump tweeted on Jan. 21. "The Dems just want illegal immigrants to pour into our nation unchecked. If stalemate continues, Republicans should go to 51% (Nuclear Option) and vote on real, long term budget, no C.R.’s!"

Under longstanding Senate rules, it effectively takes at least 60 votes to proceed to a vote on a bill. That creates a high threshold for passing legislation in the chamber -- including the legislation to fund the government and end the shutdown.

The Senate procedural action that would be used to get rid of the filibuster is called the "nuclear option." (The use of "nuclear" here is only metaphorical. No actual nuclear weapons are involved.)

With Trump tweeting about ending the filibuster, we thought it would be a good time to review what the filibuster is and what would be at stake if it is eliminated.

How does the Senate work?

There is a legend of uncertain veracity that says George Washington and Thomas Jefferson came to agree that the Senate should serve as a "saucer" to the House’s "tea cup" — a vessel for cooling the hottest passions emanating from the House.

The idea that the Senate is the slower, more cautious half Congress has been the chamber’s reputation throughout its history. The Constitution delegates internal rule-setting to the Senate itself, and for much of its history, the chamber — unlike the House — did not implement a mechanism to maneuver around a member determined enough to block action by mounting a filibuster.

In 1917, the Senate voted to empower a supermajority of 67 to cut off a filibuster and move on to other business, using a motion known as "cloture." Then, in 1975, the Senate voted to lower the supermajority to its current number, 60.

Still, 60 votes is a significant hurdle for a chamber where it’s unusual for one party win that many seats. In recent years, the two parties have become more polarized, and more willing to filibuster, even on matters that had previously been treated as routine. That has put pressure on Senate leaders to get rid of the longstanding supermajority hurdle or else face gridlock -- especially for such high-stakes topics as nominations.

Detractors have warned that such important matters were better dealt with using the higher degree of consensus conveyed through a 60-vote supermajority. But there is a tool available to a Senate leader willing to buck the chamber’s tradition: the nuclear option.

How would senators deploy the nuclear option?

The mechanics of the nuclear option are complex even by the standards of parliamentary maneuvers. The gist is that the majority party would move to change the supermajority rule through a series of votes that require only a simple majority.

The majority would try to cut off debate, also called invoking cloture. It would fail, because 60 senators do not vote for it. The chair would rule the motion not agreed to. A member of the majority would make a point of order saying that this is inconsistent with the rules. The chair would reject that argument, because it is consistent with precedent and procedure. At that point, the senator would appeal the chair’s ruling to the entire body. Then, the Senate would vote, needing only 51 votes to overturn the chair's ruling. This would establish a new procedural norm that invoking cloture only takes 51 votes rather than 60. (A more detailed explanation can be found in these two reports by the nonpartisan Congressional Research Service.)

At various points in recent years, one Senate leader or another has threatened to pull the nuclear trigger, but a bipartisan coalition always managed to unite to defuse the situation -- until matters came to a head on Nov. 21, 2013.

What happened on Nov. 21, 2013?

In 2013, Democrats, led by then-Majority Leader Harry Reid of Nevada, finally gave in to frustration over the refusal by the chamber’s Republican minority to approve President Barack Obama’s appointees, notably appeals-court judges. With the support of 52 Democrats, Reid succeeded in deploying the nuclear option, easing passage of several of Obama’s executive-branch and judicial nominees.

Reid limited the scope of his maneuver to appointments below the level of Supreme Court justice; for the Supreme Court, traditional filibuster and cloture rules would still apply.

How long did Supreme Court filibusters last?

Not very long by Senate standards -- less than three and a half years. Their end came as the Senate was deciding whether to confirm Neil Gorsuch, a Trump nominee, to the Supreme Court.

With Gorsuch’s nomination appearing to fall short of 60 votes due to strong opposition from the Democratic minority, Senate Majority Leader Mitch McConnell decided to go nuclear on Supreme Court nominations on April 6, 2017.

What did this mean for the use of the filibuster on other types of business?

Nothing -- yet.

The filibuster continues to be valid for most legislative business in the Senate. Recently, the Republican majority was able to consider several key bills, including a health care bill and a tax bill, through a 51-vote standard by using the "reconciliation" process. But reconciliation can only be used on certain types of bills and under restrictive circumstances.

To eliminate the filibuster for regular legislative business -- or for a subset of bills, such as spending measures -- the nuclear option could be used again the way Reid and McConnell deployed it.

What’s the likelihood that the filibuster could be eliminated for ordinary legislative business?

Experts told PolitiFact they are skeptical -- for now at least.

"I don’t think it likely that the GOP will nuke the legislative filibuster," said James Wallner, a senior fellow of the R Street Institute and author of The Death of Deliberation: Partisanship and Polarization in the United States Senate. "I don’t believe that there are 51 senators that support doing so."

Despite the pressures of the recent government shutdown, experts cited several reasons.

A big reason is that the filibuster bolsters the power of individual senators, regardless of party. Some senators also continue to value the filibuster because it’s so closely identified with the way the institution functions.

"Individual Republican members have found it very useful to exploit their individual procedural rights, including those that come from the filibuster, to pursue their own goals, and they might be reluctant to give up that power,"  said Molly Reynolds, a Brookings Institution scholar and author of Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate.

Another big reason is the fear that one’s own party might find itself in the minority eventually and come to regret their elimination of the filibuster.

"The ‘shadow of the future’ is perhaps the most important reason the Senate does not vote to change the rules," said Josh Ryan, a political scientist at Utah State University and author of the forthcoming book The Lawmaking End Game: Bargaining and Resolution in Congress. "When you're in the minority, you want that 60-vote threshold. Once one party changes it, there is no going back. We'd have to get to the point, like the Democrats did with federal judges, when the majority was getting absolutely nothing done."

There’s also a concern about how elimination of the filibuster would change legislative strategy for the majority. A 51-vote majority would reduce the current incentive for the Senate to take up bills that garner broad support, and that would, in turn, make legislating in the Senate even more complicated.

"Simple-majority rule means that all 51 senators are critical to the passage of Republican bills, which means there would be tremendous pressure to vote for bills that they might consider bad policy, or at least imperfect as drafted," said Gregory Koger, a University of Miami political scientist and author of Filibustering: A Political History of Obstruction in the House and Senate. "This was bad enough for health care, tax reform, and various controversial nominations. They would not like to do the same on every policy proposal."

What about lowering the threshold for cloture from 60 votes to, say, 55?

This is a possibility, but there are technical obstacles.

"Lowering the cloture threshold is actually more complicated than eliminating the filibuster altogether," Koger said. That’s because lowering the threshold would probably require a bipartisan compromise to change a senate rule -- procedural geeks, that would be Rule 22 -- and doing this would require approval by two-thirds of those voting. That’s a much higher bar than using the nuclear option.

In any case, a partial step like this "has not caught on with a significant number of senators," said Steven S. Smith, a political scientist at Washington University in St. Louis and author of The Senate Syndrome: the Evolution of Parliamentary Warfare in the Modern U.S. Senate.

Haven’t Senate leaders been all over the map on whether to use the nuclear option?

Yes, they have. In November 2013, we gave McConnell, Reid and Obama full-flops for changing their positions on whether the nuclear option was desirable. Reid and Obama favored the change in 2013 even though they had opposed it in 2005 when they were members of a Senate minority. And McConnell was willing to use the maneuver when he was in the majority in 2005 but opposed it in 2013 when he was leading the minority.

"It is fair to say that people speaking on behalf of each party have taken both sides of the argument over filibustering," Koger said. "I was at a Senate Rules Committee hearing in July 2010 when the senators joked about this very point, suggesting that they should just swap talking points when there is a change in the majority."

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Possible but risky
"If (government shutdown) stalemate continues, Republicans should go to 51% (Nuclear Option)"
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Sunday, January 21, 2018
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