The federal government recently shut down for three days because the Senate could not pass an appropriations bill with a filibuster-proof majority.  In response, President Trump and House Republicans suggested eliminating the filibuster for appropriations bills.  However, eliminating such a filibuster would likely have prevented the Senate from considering the failed continuing resolution that Republicans wanted to pass and would not help Congress pass an appropriations bill by midnight tonight.

The Senate filibuster is arguably the most important right of the minority in the Senate and is why the Senate is considered the world’s most deliberative body.  Despite its prominence, this right of the minority does not come from any Senate rule, but originates from the absence of a rule to limit debate.  

In its current form, Senate Rule XXII only allows the Senate to consider a few motions without debate.  In particular, the rule does not allow the Senate to consider legislation without debate.  As a result, to end debate on legislation, the Senate requires a cloture vote by sixty Senators.

Democrats have recently revised these filibuster procedures by changing Senate precedent.  Absent a Senate rule on point, the Senate acts by precedent.   When Democrats allowed the Senate to consider nominees without a filibuster-proof majority, they brought up a cloture motion to end debate on a nominee.  Democrats made a point of order that nominees, except for Supreme Court Justices, only require a majority for cloture.  The Democratic presiding officer followed the advice of the Senate Parliamentarian and said that Democrats’ point of order was incorrect.  Democrats appealed the decision to the Senate floor and voted to establish a new precedent that nominees, except for Supreme Court Justices, only require a majority for a cloture motion.

When Republicans revised the filibuster procedures to require only a simple majority for Supreme Court Justices, they followed the same process as Democrats.

If Senate Republicans were to allow the Senate to end debate on appropriations bills without a filibuster-proof majority, they would likely follow a similar process.  How they frame the point of order would determine how broad or narrow the new exception would be.

In addition to revising the Senate filibuster procedures, Senate Republicans would have to determine whether to overturn the Senate’s rules regarding what may be considered in appropriations bills.  Specifically, Senate Rule XVI generally restricts appropriations bills from changing existing laws.  

Currently, the Senate commonly ignores the rule.  Because appropriations bills are must pass, Congress commonly includes in appropriations bills changes to existing laws that might not otherwise be considered.  Similarly, Congress sometimes must include in appropriations bills changes to existing laws so that the House and Senate can agree to the appropriations bill.

For instance, much of the debate around the recent continuing resolution was not around the actual appropriations levels, but changes to existing laws.  Debate surrounded (i) Democratic desires to extend the expired Children’s Health Insurance Program and pass DACA, and (ii) Republican desires to lift spending caps on defense spending.  

The Senate has largely ignored this restriction on changing laws in appropriations bills because the Senate rules already require a filibuster-proof majority to pass appropriations bills.  However, the Senate minority would likely no longer ignore this restriction if the Senate eliminated the filibuster on appropriations bills.

Although Senate Republicans could include in their proposed precedent that an appropriations bill may change existing laws, they are unlikely to do so.  Such a change in precedent would allow the Senate to avoid a filibuster simply by including legislation in an appropriations bill.  The new precedent would create an exception that would swallow the general filibuster rule.

If Senate Republicans had taken this narrow approach to eliminating the filibuster for appropriations bills, while preventing appropriations bills from changing existing laws, the revised procedures would likely not have prevented the recent government shutdown.  Under the revised filibuster procedures, the Senate could not have considered the failed continuing resolution.

To gain Democratic votes to offset Republican Senators who promised to vote against the continuing resolution, the failed continuing resolution included an extension to the Children’s Health Insurance Program.  As the extension was a change to existing law, the revised filibuster procedures would have prevented the Senate from even considering the failed continuing resolution.  

Similarly, because much of the debate surrounding passing a continuing resolution today involves changing existing laws, it is unlikely that if the Senate were to eliminate the filibuster on appropriations bills, it could more easily pass a continuing resolution before funding ends at midnight.