With the Dems fillibustering the nomination of Gorsuch, the GOP is threatening the nuclear option. With just 51 votes, they can end the possibility of filibustering a Supreme Court nominee forever.
It would take 60 votes for them to simply overturn the current filibuster.
Why is it set up this way? How did the filibuster make it this long if this option was always on the table?
Its the rules. Rules stop things from getting too weird.
What’s going on right now isn’t even a filibuster; it’s merely a cloture vote, which takes 60 votes to pass. It’s filibuster-lite. The nuclear option is just a vote to change the rules. Beyond that, filibusters don’t even truly exist anymore. No one has the sand to stand there and read Funk and Wagnell for twenty-four hours.
Article 1 Section 5 of the U.S. Constitution says that each house of Congress determines its own rules. In the Senate, though, there’s some debate as to what this means exactly. Are Senate rules suppose to carry over from one session to the next and amended as necessary, or can the Senate rewrite its rules at any time as it sees fit?
“We can rewrite our rules whenever we want, and we don’t have to adhere to existing Senate rules while rewriting those rules” is the basis for the nuclear option.
The filibuster has mostly survived because while you may be in the majority today, you may be in the minority in two years. And if that should happen, you’d be glad to have the option of the filibuster at that later time.
It was not set up this way on purpose. There’s basically a loophole that can be exploited, and was in 2013.
Senate rules carry over from session to session. To change the text of those rules, 2/3rds of the Senate must agree to end a filibuster on that proposal.
However, the President of the Senate must apply those rules to particular situations. If the Senate believes that the President has misapplied the rules, a majority of Senators can vote to overturn the opinion of the President.
So imagine if the Senate had a rule that “Senators must wear a red shirt on Tuesdays.” If I sought to amend the text of that rule to say, “Senators must wear a red OR GREEN shirt on Tuesdays,” I would need a supermajority of Senators prepared to vote with me.
However, if I asked the President, “Say, does’t the text of that rule really mean that Senators must wear red OR GREEN shirts on Tuesdays?” The President would likely disagree with my proposition, per the plain text of the rule. However, it only takes 51 Senators to overturn his opinion. The text of the rule is unchanged, but the precedent is now established that “red” actually means “red or green” by a simple majority vote.
What it boils down to is that our governmental systems were designed by a bunch of amateurs who had no idea how to design governmental systems. They’ve only survived as long as they have through a colossal mound of gentlemen’s agreements, and those gentlemen’s agreements are starting to fall apart.
To be fair to current generation pollies, some of those agreements were wonky not much after they were put in place.
I suspect that it’s more a matter that it was hard enough to get anyone to agree to anything as it was, the clock was ticking, and it was hot and everyone just wanted to go home rather than hammer out the specifics. Kicking the can down the road has a long and distinguished history, I suppose.
Another oddity is it takes fewer Congressional votes to impeach and remove from office the President than override a Presidential veto.
Is there anything that keeps the Senate from removing the filibuster and then re-adding it?
No except once you get rid of it, and it only takes a majority, then any other time the majority wants something, why would they put it back in, or not remove it again.
Re-adding it would be meaningless without a more general compromise and meeting of the minds. The filibuster rule only has power because of precedent. Once it’s gone, so’s the precedent.
Or to put it another way, the Senate is Calvinball.
For those poor deprived souls who have never read Bill Watterson’s classic newspaper comic Calvin and Hobbes, Calvinball is a made-up game played and invented by the two title characters. There are a slew of complicated rules associated with the game, most of which are arbitrary and some of which are utterly nutty, but the most important thing to know about the game is that any of the rules can be changed at any time, usually by any player, except perhaps when there are rules prohibiting some players from making those changes (although those rules can be changed or thrown out too, and games often end up with players making retaliatory rules designed to cancel out or complicate rules devised by other players).
It’s a game, in other words, with an awful lot of complex and arcane rules that tend to evolve over time and are generally determined by the players themselves—rules that usually have to be obeyed, except when they don’t.
This is not an exact description of how the Senate works, but it’s close enough. And it’s a reasonably useful context in which to understand the most recent squabble over the filibuster.
Forever? No party has the power to do that. Anything the Senate can do it can undo. It’s an old principle that no government can bind its successor.
Once the GOP goes nuclear, is there anything stopping Democrats from actually filibustering (ie standing there and reading from the Cat in the Hat)?
The vote calls for cloture on all debate, doesn’t it?
I read about the vote to end the “old school” filibuster of the Civil Rights Act (where they pretty much wheeled in a sick Senator, who pointed to one of his eyes to indicate that he was voting “Aye”). I am assuming this vote has the same effect.
If you read Robert’s rules, you will find mention of a motion to “move the previous question”. What this is a privileged motion (meaning that, along with a few others, it takes precedence over whatever is being discussed) and, assuming it seconded, must be voted on before returning to the previous question. What it means is that it proposes an immediate vote on that previous question, thus cutting off further debate. Assemblies that have such a rule can’t have filibusters. The original senate of 26 members did not adopt such a rule, although they had a “cloture” rule that did cut off debate but required, originally, a 2/3 majority. At some point during my lifetime, and after a big fight, this was changed to 3/5, which is where it is now. But then a special rule, now called budget reconciliation, allows a simple majority in some cases and then, after the senate was systematically refusing to allow votes on Obama appointees, changed the rule to allow a majority to vote on presidential appointments, with the exception of the supreme court. That exception has now been removed. And if they were to remove it for ordinary legislation it would be gone. It can’t come back because it would take a vote by the majority to bring it back and why would the majority party restrict its own power in that way? The only thing that keeps it going is precedent.
It used to be that to have a filibuster, you actually had to stand up and keep speaking. Wayne Morse once did this for 24 hours. Nowadays all you have to do is announce that you will filibuster and the leaders withdraw the bill in question. Although this saves everyone a lot of time and effort, it also makes having a filibuster much easier and has only encouraged them. Maybe they should go back to the old system, before they actually abolish it.
I don’t know of any other legislative assembly in which a minority can block the majority in this way. For better or for worse–and it works both ways. Let me just point out that were it not for 8 or 10 “Blue dog” Democrats that had to be mollified to break a filibuster, Obama just might have gotten a true single-payer health care system through congress and damn the insurance companies. Just extend medicare down to year 0.