The “Nuclear” Senate Filibuster Option
Theoretically, the current democratic Senate majority of one
Kamala Harris vote, could ram through whatever legislation the house gives
them, including DC statehood, a packed Supreme Court, “Truth Commission”, or
any other weird socialist bills the left can conceive. Most likely they won’t, because there are,
after all some responsible democratic senators (and representatives), that know
that such actions would destroy our legislative process, and eventually, our Republic. Don’t put it past Nancy Pelosi and Chuck Schumer
to try, though.
Some background:
The 60-vote rule and
filibusters
Beginning with a rules change in 1806, the Senate did not
restrict the total time allowed for debate. In 1917, Rule XXII was amended to
allow for ending debate (invoking "cloture") with a two-thirds
majority, later reduced in 1975 to three-fifths of all senators "duly
chosen and sworn" (usually 60). Thus,
although a bill might have majority support, a minority of 41 or more senators
can still prevent a final vote through endless debate, effectively defeating
the bill. This tactic is known as a filibuster.
Since the 1970s, the Senate has also used a
"two-track" procedure whereby Senate business may continue on other
topics while one item is filibustered. Since filibusters no longer required the
minority to actually hold the floor and bring all other business to a halt, the
mere threat of a filibuster has gradually become normalized. In the modern
Senate, this means that any controversial item now typically requires 60 votes
to advance, unless a specific exception limiting the time for debate applies.
Changing Rule XXII to eliminate the 60-vote rule is made
difficult by the rules themselves. Rule XXII sec. 2 states that to end debate
on any proposal "to amend the Senate rules...the necessary affirmative
vote shall be two-thirds of the Senators present and voting." This is
typically 67 senators assuming all are voting. Meanwhile, Rule V states that
"the rules of the Senate shall continue from one Congress to the next
Congress unless they are changed as provided in these rules." These
provisions, by themselves, mean that the general 60-vote cloture rule in Rule
XXII cannot be modified without the approval of 67 senators.
The nuclear option
concerning filibuster and cloture.
Essentially, only
simple majority required
Rule XX
Although rule XXII requires three-fifths of Senators to
close debate, rule XX states that "A question of order may be raised at
any stage of the proceedings" and "shall be decided by the Presiding
Officer without debate, subject to an appeal to the Senate...and every appeal
therefrom shall be decided at once, and without debate".[6]
Procedure to invoke the option
The "nuclear option" is invoked when the
presiding officer's enforcement of rule XXII is overruled by the full Senate
without debate under rule XX. Without debate, there is no need for a
three-fifths majority to end debate. The presiding officer is therefore
overruled by a simple majority.
Following a failed cloture vote, the majority leader
raises a point of order that Rule XXII should be interpreted – or disregarded
on constitutional grounds – to require only a simple majority to invoke cloture
on a certain type of business, such as nominations. The presiding officer, relying
on the advice of the Senate Parliamentarian, then denies the point of order
based upon rules and precedent. But the ruling of the chair is then appealed,
and is overturned by simple majority vote. For example, the option was invoked
on November 21, 2013, as follows:
Mr. REID. I raise a point of order that the vote on
cloture under rule XXII for all nominations other than for the Supreme Court of
the United States is by majority vote.
The PRESIDENT pro tempore. Under the rules, the point of
order is not sustained.
Mr. REID. I appeal the ruling of the Chair and ask for
the yeas and nays.
(48–52 vote on upholding ruling of the chair)
The PRESIDENT pro tempore. The decision of the Chair is
not sustained.
The PRESIDENT pro tempore. *** Under the precedent set by
the Senate today, November 21, 2013, the threshold for cloture on nominations,
not including those to the Supreme Court of the United States, is now a
majority. That is the ruling of the Chair.
And that’s how it could work, to fundamentally change our
two-party system, into an oligarchic, one party, socialist system, the first
step on the path to a Venezuelan or Chinese style socialism, and all that that
one can imagine that entails.
Ray Gruszecki
February 3, 2021
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