When the Senate lowered the threshold for nominees to a simple majority, it kept the 30-hour requirement to overcome a filibuster. While the Republican Senate has been willing to devote 30 hours to overcome filibusters on nominees to more important positions like cabinet secretary and circuit court judge, the floor time has added up quickly. As a result, the Republican Senate has not had enough floor time to confirm “lower-level” nominees. To resolve this issue, Senate Republicans have proposed a resolution to reduce the time required to overcome filibusters on district court judges and non-cabinet, Executive Branch nominees. The Senate Rules Committee approved the resolution on a party-line vote and Republicans are threatening to use the “nuclear option” to approve the resolution. Even though the resolution likely will not pass, the threat itself will likely lead to the end of the Senate as a deliberative body.
Senate Rule XXII requires a two-thirds vote to overcome a filibuster on a resolution to modify Senate rules. However, Republicans are proposing to use the nuclear option to overcome this requirement: Absent a Senate rule on point, the Senate acts by precedent. Thus, the Senate can establish a new precedent by a simple-majority vote.
For instance, 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.
Although there is precedent for using the nuclear option to overturn the Senate rules, this proposal to reduce the time required to overcome a filibuster is different because Republicans are proposing to use a resolution to change precedent. Using a resolution that is approved through the Rules Committee is a much more formal process (and depending on language could have a much broader impact) than a simple oral description used in a point of order. Effectively, the new precedent would not only modify the time required to overcome a filibuster, but establish a formalized process to broadly change and/or ignore the Senate rules.
Specifically, this new precedent would mirror how the House of Representatives operates. The House of Representatives’ rules require two-thirds of the House to support an intrasession change to the rules. However, before considering legislation, the House of Representatives typically passes, by a simple-majority vote, a resolution that specifies the rules the House of Representatives will use to consider the legislation. For example, before considering the Tax Cuts and Jobs Act, the House of Representatives passed a resolution that said no points of order will be considered on the bill. In effect, members could not challenge the bill as violating the House rules, including the House rule that prevents tax increases.
Even though Republicans have the seats to win a simple-majority vote to change the time required to overcome a filibuster on most nominees, a vote would likely not succeed. With Senator John McCain (R-AZ) unable to vote, Republicans cannot afford to lose any Republican votes. Senator Susan Collins (R-ME) has already expressed concerns about the proposal, and other Republicans could similarly oppose the proposal because the individual power of each Senator comes largely from the ability to slow down nominations, which this resolution would eliminate.
If this proposal will not succeed, why is it such a big deal? It is a big deal because normalizing the concept of using a resolution to change Senate rules by a simple-majority vote encourages a future Senate to use the process. During the Bush Administration, a Republican Senate first considered using the nuclear option to require only a simple majority to approve judicial nominees. Although the Senate never went through with the proposal because of opposition from Republican Senators, normalizing the concept helped eliminate opposition when Democratic Senators voted to allow a simple majority of Senators to approve most nominees.
Even considering a resolution to limit time for overcoming a filibuster on most nominees is a major change because it will likely normalize in the Senate the process the House of Representatives uses to effectively ignore its rules.