Written by Skyler Shipp (News Writer)
With Biden struggling to pass many parts of his agenda, Democrats have brought up a new idea to allow their priorities to pass far more easily, ending the Senate filibuster using the “nuclear option.” The idea has been embraced by many in the progressive wing of the party but has raised some backlash from moderate Democrats such as Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) who think the filibuster is important to protect the minority party and encourage debate.
The idea of the filibuster began very early in our nation’s history, with the practice of “talking a bill to death” sometimes used to delay the vote on a bill (Senate.gov). The measure became more common throughout the 19th century, with no process to stop the debate and force a vote existing in the Senate rules. In 1917, the first cloture rules were created, requiring two-thirds of the Senate to vote to end a filibuster. It remained this way until 1975 when the threshold was changed to a more reasonable 60 votes (Brookings.edu). Notably, measures strictly related to budget and revenue can pass under Budget Reconciliation, which has different rules and allows certain types of bills to be passed with a simple majority, this is why the Senate was able to pass the American Rescue Plan with 50-49 vote. A major reason behind the movement to end the filibuster is the Senate Parliamentarian’s ruling that a minimum wage change cannot be passed under the budget reconciliation process used for the rescue plan, and therefore requires 60 votes.
There are a few options for changing this 60 vote threshold. The most straightforward would be to formally change the text of Senate Rule 22 (Brookings.edu). However, using this option would require a two-thirds majority vote to end debate on the change, something nearly impossible in the current climate. The other option is known as the “nuclear option” and involves a change in the Senate precedent instead of a formal rule change. The nuclear option has been used on multiple occasions including by Democrats in 2013 to only require a simple majority vote for federal judicial appointments and executive nominations and later by Republicans to require a simple majority for Supreme Court Justices in 2017, instead of the previous three-fifths.
Each use of this option has been met with extreme backlash from whatever side was somehow disadvantaged by the procedural change, yet both parties have now changed senate rules to work in their favor. The “nuclear option” is the most likely way the Senate Democrats would seek to change Senate rules, but it is highly unlikely that they could get Manchin and Sinema on board with complete removal of the senate filibuster. However, they may be open to smaller reforms to the Senate. One option is changing the rules so that the burden falls on the minority. Basically, instead of requiring 60 votes to end the debate, this would require 40 votes to continue the debate. This means that all opposing Senators would have to be present, which is not required by the current rules, thus making a filibuster more difficult (The Washington Post). Another similar option would be returning to the present and voting standard, where Senators would still need a three-fifths vote to stop debate, but that threshold would only be from the present senators. Under these rules, minority party Senators would be incentivized to be present for the debate, since, if they didn’t show up, the majority would have an easier time closing the debate. The last possibility would be to narrow the supermajority vote threshold from 60 to 55. This would mean that most bills would likely require some support from the minority party, but not as much as the 60 vote threshold demands.
Changing Senate rules through the nuclear option is a risky game to play, and it is quite unlikely that Sinema and especially Manchin will approve of any changes to Senate rules. It must be remembered that Manchin is a Democratic Senator in a state where Biden didn’t even reach 30% of the vote in 2020 (Politico), so he must tread extremely carefully if he wants to maintain his spot in the Senate. Due to this, it is highly improbable that he would support any changes to the Senate rules, especially the complete abolition of the filibuster. This means that for the foreseeable future, the legislative filibuster will remain an important part of the Senate.