What's a Filibuster, or Can the Senate really just "change the rules"

Politics & Elections
1

Seeing a lot of talk about how a simple majority in the Senate can just “change the rules” to get rid of the 60 vote requirement to end a filibuster. Is it really that easy? Yes and No.

What does the Senate do? Basically….Only the Senate: Ratify Treaties, Confirm Presidential Appointments, Impeachment. Shared with House: Passing laws, Oversight.

The Constitution says the senate can make it’s own rules (text of constitution) on how the Senate is run by a simple majority (case law).

What is a filibuster? In the Senate, there are two steps when a new bill is introduced. (1) You debate the bill and then you vote to end the debate. (2) Then you vote on passing the new bill. The filibuster is debating the bill. Cloture is voting to end the debate.

In the olden days, you filibuster (debate) forever and there was no mechanism to vote to end the debate. One person (an extreme minority) could hold everything up. When the last man stopped talking, the debate was over. Then you would vote. Also, nothing else could happen in the Senate while this happened.

A hundred years ago (1917), the Senate decided talking forever sucks. Let’s implement a mechanism (cloture) so some majority of Senators can vote to end the debate so one Senator can’t prevent us from voting on this. You could either stop talking to end the debate, or, 67 Senators could vote to end the debate even if some Senators wanted to continue talking. The filibuster/having to invoke cloture was rarely used, most people just stopped talking and then they would vote on the bill which can pass with a simple majority. Stuff got done.

Over the last hundred years, the Senate has formally changed it’s rules on how cloture is invoked (67 Senators, 60 Senators, etc.). Today, there is only one way to end a debate - 60 Senators vote to invoke cloture. Because a debate could go on indefinitely w/o 60 votes, the minority has some juice to help frame the actual bill. Minority power. The Senate has pride in this minority power. This power was not really used though until more recently.

In more modern times, 1990s, both sides have started using the filibuster much more often for much less controversial bills.

To “change the rules” of the Senate, that all the Senators agreed to, say they need 67 Senators to vote in favor. So if they want to remove the filibuster, 67 Senators need to agree to before that can happen. If they want to follow the Senate Rules, that’s the only way.

So now you have a situation where more and more is being filibustered/less getting done and both sides aren’t working together, but needing 67 votes to do something about it. Gridlock. That sucks!

You can either work together to figure it out, or do something more divisive to “solve” that problem. Remembering that the Constitution says the Senate can make it’s own rules, some Senators being toying with a “Constitutional Option” (aka the nuclear option). What if, instead of following the Senate rules, we just pretend they don’t exist and ignore them because the Constitution says the Senate can do what it wants with a simple majority. So they find a loophole to implement that option.

Before 2013, cloture had never been invoked with a simple majority because the Senate Rules don’t allow it. The idea had been threatened several times though.

One of the things the Senate does is Presidential nominations. It takes 60 votes to end a debate/invoke cloture on nominations.

Fire up the Nukes. Now we enter the weeds….In 2013, the Democrats tried the loophole. Here’s how it works. They are debating a nominee. The D majority leader tells the parliamentarian they have 53 votes and want to invoke cloture. The parliamentarian says No, according to Senate Rules 53 is not enough and 60 is required. The D majority leader appeals that decision to the entire Senate because they think it is wrong. On appeal, the Senate can vote, by a simple majority, to determine if the parliamentarian is confused. The Senate votes by simple majority that he is, the Senate Rule that everyone agreed to that says “it takes 60 votes to invoke cloture” actually means it only takes a simple majority. It’s done. Instead of needing 60 votes to end the debate on nominees, it now and forever only takes a simple majority. Welcome Pete Hegseth, Kash Patel, Pam Bondi, Kennedy, etc.

In 2017, for now the second time, Republicans do the same for Supreme Court nominations.

And here we are. The Senate has a few distinct functions. The nominations process has been nuked. The other functions, including passing laws, has not been nuked. The nuke has been contained to only nominations because the Senate functions (Nominations; Treaties; Passing Laws, etc) are so separate and unique.

So, “to change the rules” using the loophole of a simple majority means nuking the Senate function of passing laws to get rid of the filibuster. Once nuked in any way, every law passed in the Senate will only need a simple majority to invoke cloture/end the debate. You can try a “tactical” nuke like how they tried to with only some nominations, but it doesn’t work. Once you stop following your own rules, you devolve for worse, not for better.

Should we nuke how the Senate passes laws? Might there be some unintended consequences to pass any law with a simple majority.

2

I’m in favor of majority rule regardless, but the logic of the filibuster only works when it’s treated the way it was treated for myst of US history - as something that can only be used sparingly.

When filibustering actually required you to hold the floor it wasn’t realistic to use it to veto anything and everything. And even after the silent filibuster was introduced, it worked for a time because whenever the minority took it too far, the majority had the leverage of threatening to go nuclear.

What happened is that the filibuster became more and more of the exception rather than the norm. At some point threatening is only going to work if you’re actuallywilling to follow through, which is what Harry Reid did.

The filibuster on legislation has survived longer than the one on appointments because reconciliation allows a lot of legislation by simple majority anyway, and thus far filibusters to budgets have managed to be resolved without the level of escalation we’re seeing now. At this point even if the GOP makes a significant compromise with the Dems the filibuster on budgets is probably on its last legs. Once its been established that you can filibuster a clean continuing resolution and get something out of it it’s going to become more and more commonplace. And eventually the majority in one of those fights is going to decide that they have to draw a line and go nuclear rather than continue to make empty threats.

3

Just on an abstract level, ignoring the immediate issues, we could probably do without the filibuster. Really, we could do without the Senate itself, as its systematic over-representation of small States is undemocratic and serves no useful purpose.

Given that, currently, most of the smallest States are very conservative, it would be to the tactical advantage of Democrats to not have a filibuster. It’s feasible that the Republicans might get a 60 vote majority if they have a few good elections in a row, while it’s difficult for Democrats to get to 50 even when the majority of voters support them.

4

This is why the GOP isn’t eager to go for this, especially the ones that have been around for awhile.

But could they change the rules with 51 votes (or 50 + Vance)? Yes, they could.

5

I am not sure here. It seems the Dems did not change the filibuster in 2013. They did consider it-

However, On April 6, 2017, the Republican-majority Senate invoked the nuclear option[47] and voted 48–52 along party lines[48] against sustaining the decision of the chair on a point of order raised by Majority Leader Mitch McConnell, thus removing the Supreme Court exception created in 2013.[49] This established a new precedent which allowed cloture to be invoked on Supreme Court nominations by a simple majority.[50] The vote came after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States.[51]

Seems like it.

6

Every rules of order I know has built in limits so that filibusters would not be allowed. Yes, I know that according to legend that the filibuster was created when Aaron Burr got rid of the motion Previous Question (stop debate and vote now) but that was because there was no limitations built in. For example, in Robert’s Rules of Order, a member may only speak twice on a motion and only for 15 minutes each. Without the Previous Question, this naturally limits the talking time unless the body extends the time or number of speeches a member can give by 2/3 vote.

First of all a parliamentarian only advises the Chair, they do not issues decisions only the Chair does. Second, it is a decision that the interpretation of the rules given by the Chair when ruling on a Point of Order is incorrect (calling it ‘confused’ is a bit pejorative). So let’s say a member feels that the “60 vote rule” was only intended for new business and not intended to approve paying for things already approved by the body. The member then rises when a cloture vote is ordered and would say something like:
Member: I rise to a point of order that the vote on cloture under Rule XXII is by majority vote when debating a continuing resolution.
Chair: The Point of Order is not well taken.
Member: I appeal the decision of the Chair.
If a majority then vote against the Chair’s decision i.e more vote “nay” to “aye” on the motion Shall the decision of the Chair be sustained? then the body has set the precedent that only a majority vote is needed for cloture in the specific case of debating continuing resolutions.

So it is not as simplistic you make out that they are changing rules via nukes. Could they use it to get rid of the filibuster completely through the nuclear option or any other rule that is getting in their way? Theoretically, but that will not happen and I highly doubt that nukes would be used to eliminate the filibuster on ordinary main motions. It would have to be in cases here most Senators would agree (and without the benefit of debate) that this is a circumstance that was never intended to be filibustered like judicial nominations and (I hope) continuing resolutions.

7

The linked Wikipedia article describes the Democrats changing the filibuster precedent in exactly the way CoolHandCox described.

Also the paragraph on the 2017 nuclear option by Republicans doesn’t have the word “however”.

8

You can find more about the nitty-gritty of the 2017 action here if you want (PDF warning): https://sgp.fas.org/crs/misc/R44819.pdf

But yes, the summary is correct. Cloture is moved, someone rises to claim that the vote for cloture should only need a majority, the chair rules against that point of order because of Rule XXII, the ruling of the chair is appealed (and not subject to debate, so no filibustering this part), and the body votes on the appeal of the ruling. Once the ruling of the chair is overruled on appeal, a new precedent is set and the previous question is voted on again with only a majority required.

The part that makes it nuclear (other than the flowery language) is that once that ruling has been appealed and overruled (that SCOTUS nominations are not subject to a 60-vote threshold, for example) that is now the rule going forward. So you can make it as tightly defined as you want, but you’ve started down the path; remember Democrats started this with appeals court nominations and then the GOP extended it to SCOTUS justices as well. There is definitely something fundamentally different between Continuing Resolutions and judicial branch nominations - I think it will be hard for the GOP old-timers to give up a lever they have used repeatedly over the last 40 years.

But we shall see.

9

First, thanks for spelling out the process for how the constitutional/nuclear option is used. Your post is much more accurate than mine.

Second, the part of your post that I quoted, that’s the nuclear option, right? Dramatically changing the meaning of a very clear cloture rule by a simple majority.

If so, then my point was that has only been done twice only re nominations. And the first time in 2013, they tried to make it tactical (only executive and low level judicial; not Supreme Court nominees). That lasted a few years. So yes they can try and make a specific exception when it comes to passing certain laws but never to others. It’s unrealistic to think the floodgates aren’t open, though.

Whether getting rid of the 60 vote filibuster is bad or not is of less concern to me than how it’s done to get there.

10

I wouldn’t say meaning, I’d say interpretation. It may be a very subtle difference but it doesn’t change the rule itself, just how it applies in a very specific scenario (such as judicial nominations).

I think that one could make the argument that the 60 vote rule was never meant to apply to nominations as the Senate has a duty to give an up-down vote to any Presidential nominee, just like I don’t think it was intended to apply to spending decisions made. That’s why it’s not really changing a rule, it’s saying that I interpret the rule as not applying in this case for reasons.

11

One could make that argument. But, of course, the text of the rule in question (Rule XXII: here - Rules Of The Senate | U.S. Senate Committee on Rules and...) provides for no such exception.

That’s why it is considered going nuclear. It is, without question, violating the rules as written just because the majority says so. Whether that is for the greater good or not is open for debate, but any attempt to say “well, the rules don’t really apply here” is just the barest of fig leaves.

12

That is why no italics.

13

That is true. Rule XXII covers pretty much everything the Senate deals with.

14

So it’s not lost, using the nuclear option has never been used to change a Senate Rule’s core meaning - until recently. It had only been used for it’s limited purpose, to clarify a confusing procedural rule or the like. There is a different and very clear process laid out in the Senate Rules on how to change the actual Senate Rules (67 votes, used many times). This is why I call it a loophole and used illustrative words like being “confused” - it’s painfully obvious what the rule is - you’re just ramming a core rule change improperly through an “interpretation”. It would be like a simple majority in the Supreme Court interpreting the Constitution’s “2 Senators from each State” actually means every State but California and New York. They only get 1. You’d lose your mind.

Being able to get away with something in broad daylight is very different than following the rules, even the spirit. Maybe it’s too late to stop this since it’s already been done twice in 2013/2017. I just think it’s naive to expect the Senate to ignore some of its rules but expect the Senate to abide by the rest. You don’t even need the semblance of using a precedent loophole to do it - that’s just for show to make it seem legit. Because the constitution empowers the Senate to determine its own rules (which is what allows the constitutional/nuclear option to work), not following a rule has no effect unless the Senate decides it does. A simple majority can just deem a new rule that clearly contravenes an existing one and make it so. Without restraint, you can just use your imagination on how this can play out. And even I would agree doing it this dumb way would be Constitutional.

I’m just not an optimist where I only see what wonderful things we can pass if only. I just see what terrible things will happen when we stop following our rules. I suppose we should have at least said back in 2013, we will now get these Obama judges passed, but it also means there is nothing we can do to stop completely unqualified hacks in the future to run the executive. Should we still do it? I’m betting they did not use their imagination and the thought was we’ll get in qualified liberals and they’ll get in qualified conservatives. While frustrating, sometimes gridlock can be a good thing.

15

The reality is this: in any deliberative body, from the lowly HOAs & PTAs to Congresses and Parliaments, controlling any abuse of power starts with a majority wanting the rules enforced. If a majority wants to act in violation of the rules, there is little the minority can do to stop them.

There was one case where our organization president ruled one way on a Point of Order because she wanted the motion to pass. The next meeting she completely contradicted herself on a ruling because she wanted the motion to fail. I raised a Point of Order to this effect and of course she ruled it not well-taken so I appealed. In my debate I read from the minutes showing the contradiction but a majority wanted the motion to fail so they sustained her decision. Same basic idea behind the nuclear option.

16

I think they did use their imagination and were both aware of the consequences of action and inaction. They realized how partisan the courts could get based on majority rule but they also realize that gridlock in tje extreme, which was the trajectory we were on would ultimately result in a court system that actually couldn’t function.

Compromise on judicial appointments had failed for at least a decade - judges were already chosen on ideological grounds and compromises to nominate nonpartisan, qualified judges were getting more rare. When compromises were possible they generally involved agreements like the gang of 14 in 2005 in which highly partisan judges still got appointed but the democrats agreed to drop the filibuster in exchange for reducing the number of partisan judges and withdrawing those that weren’t confirmed - leaving the vacancies open for a future fight.

It was a combination of the fact that the existing paradigm didn’t actually result in putting more moderate, impartial judges into the court system and the fact that the only leverage the majority had in these negotiations was the threat to nuke the filibuster. At some point that threat is empty if you’re never willing to use it and the alternative in the long run was a nonfunctional court system.

17

I think the majority can act however they please, even if contrary to their own rules. I just won’t applaud or vote for anyone that would be apart of it. Whether that’s in my HOA or the Senate. That’s my role in this.

I don’t think it’s a choice between getting stuff done and gridlock. I think there’s a third, much worse, path. I think they’ll just be able to do a lot awful things quickly.

I appreciate the responses and other viewpoints. They do make sense.

18

Gridlock is worse than legislating too quickly if it means leaving important government roles unfilled or failing to pass budgets.

In presidential systems, if the legislature is absolutely unable to function for long enough it can lead the executive branxh to try desperate attempts to fulfill those functions by fiat and trigger a full blown constitutional crisis.

19

The house of representatives used to have something like a filibuster but they abolished it in the 19th century.

I would support filibuster reform, so engaging in a filibuster is more difficult and requires more effort. A glide path filibuster would also be an option where the number of senators needed to vote yes shrinks with each vote. The first vote it may be 60 senators. Then 57, then 54, then 52, then 51 (or 50 + VP).

20

I suppose requiring full attendance to remain in the chamber while the one senator hogs the floor reading the phone book would be a bridge too far. But it’s a darn nice idea.