I’m a bit hazy on the mechanics of the nuclear option, wherein a procedural loophole allows for a simple majority vote to pass legislation. Could this be invoked at any time and on any issue, and is the only thing stopping it’s universal use a fear that the other party will use it when they get a simple majority?
I understand a lot can be done under budget reconciliation, but for that legislation that requires 60 votes for cloture, is the only thing bringing McConnell to the table the hope that he can prove he’s got fair legitimate issues and is not simply being obstructionist so as to avoid the Dems going nuclear?
The Wiki page actually has a pretty good explanation of the process. If the majority wants to eliminate the filibuster, what would happen is that after a failed cloture vote the Majority Leader would raise a point of order that Senate rules should be interpreted such that only a majority is required to cut off debate on the legislation in question. The chair – based on the advice of the Parliamentarian – would deny the point of order. The Majority Leader would appeal the ruling of the chair, a motion that is not debatable and requires only a majority of Senators to sustain. If it passes, a new precedent is set regarding what can be filibustered.
In raising the point of order, the Majority Leader could try to limit the impact. For instance, when Harry Reid first invoked the nuclear option on nominees in 2013, he did so only for non-Supreme Court nominees. But then a different majority can use the same process to expand the precedent – as Mitch McConnel did in 2017 to get Neil Gorsuch seated on the Supreme Court.
So Schumer could try “bracket” the nuclear option to, say, legislation that deals with pandemic response. But the next time he or another Majority Leader wants to pass legislation over a threatened filibuster, they’ll just use the same process to expand the scope to whatever they want to pass.
In regard to budget reconciliation, it can help get around a filibuster but has several limitations. A budget reconciliation bill must address revenue, spending or the federal debt, and generally only one bill per year is allowed. The so-called “Byrd Rule” prohibits several categories of provisions from being included in the bill, including policy provisions that do not directly impact federal revenues or spending, or any provision that would add to the deficit beyond ten years from the adoption of the bill. These limitations make it hard to use reconciliation as a vehicle for enacting policy, or for funding programs for more than ten years.
The Chair, on the advice of the Parliamentarian, determines whether a provision violates the Byrd Rule and it requires 60 votes to overturn his or her determination. The Chair does not have to rule in accordance with the Parliamentarian’s advice, but almost always has. If the Chair were to start just routinely ignoring the Parliamentarian and allowing such provisions in the bill, might as well drop the whole rigmarole of budget reconciliation and just nuke the filibuster.
Republicans did not ignore Byrd Rule restrictions in passing the 2017 tax cut bill. Raising and/or lowering tax rates is well within the scope and purpose of budget reconciliation, and Republicans set the tax cuts to sunset in 2027 so that they would not violate the ten-year limitation. And several provisions from the House-passed bill were found to be in violation of the Byrd Rule and were removed.
The bill may have been egregious, but it was passed in compliance with the budget reconciliation rules.
Thanks for slogging through that punctuation-less OP to get to the underlying question. So the brinksmanship of the nuclear option is like Prisoner’s Dilemma. IIRC, game theory would suggest it’s about time the Democrats give a little tit for the Republican tat.
Given the built-in advantage that Republicans have in the Senate due to the large number of small, rural states in the chamber, its not necessarily to the Democrats’ advantage to move to a situation where all votes are by simple majority. But on the other hand, I don’t think there’s anyway to stop this train – one side or the other is going to nuke the filibuster when it makes the difference between delivering or not delivering on a bill that’s important to their base.
The Republicans are going to do it without compunction as soon as it’s to their advantage. The Democrats not doing it now isn’t going to make one iota of difference to what the Republicans might do in the future. They have long abandoned any notion of “upholding norms”. FFS, half of them won’t even accept election results.
The Democrats should nuke the filibuster immediately to enact voting rights reform. If they don’t, Republican voter suppression will go into overdrive with more and more outrageous moves, they know time is against them. If they manage to get comprehensive control of government one more time I’m not sure democracy will survive.
Joe Manchin may have concerns with some issues, but surely he’s not going to say he’s against enforcing the right to vote.