Democratic Presidential Candidates Consider Eliminating the Senate's Filibuster

This week, former Senate Majority Leader Harry Reid (D-NV) encouraged Democratic candidates seeking their party’s presidential nomination to push for the elimination of the filibuster in order to bring legislation addressing climate change to the floor in an interview with The Daily Beast:

“It is not a question of if. It is a question of when we get rid of the filibuster. It’s gone. It’s gone.”

As majority leader in 2013, Reid used the “nuclear option” change the rules governing the Senate’s cloture motion to reduce the number of votes needed to end a filibuster on all non-Supreme Court nominations from the traditional three-fifths majority (usually 60 votes) to a simple majority. In 2017, Senate Majority Leader Mitch McConnell (R-KY) used the same process to apply that change to Supreme Court nominations in the confirmation of Justice Neil Gorsuch.

The threshold to invoke cloture and end a filibuster on legislation still stands at a three-fifths majority and despite President Donald Trump expressing a desire to see the demise of the filibuster, McConnell spoke in support of the legislative filibuster in April 2019:

“The legislative filibuster is central to the nature of the Senate. It has always been and must always be the distinctive quality of this institution… this part of the Senate’s DNA must never be put in jeopardy or sacrificed to serve either side’s partisan, momentary wins.”

Here’s where the Democratic presidential contenders who have served or currently serve in the Senate stand on eliminating the legislative filibuster according to The Washington Post:

• Eliminate the Filibuster: Sen. Elizabeth Warren (D-MA).
• Open to Potentially Ending the Filibuster: Sens. Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Kamala Harris (D-CA), Amy Klobuchar (D-MN), and Bernie Sanders (I-VT).
• Preserve the Legislative Filibuster: Sen. Michael Bennet (D-CO).
• Unclear: Former Vice President Joe Biden (D-DE), who served in the Senate from 1973-2009, didn’t respond to the Post’s inquiry.

It’s worth noting that a sitting president can’t directly eliminate the filibuster, which can only be accomplished by senators voting to change the chamber’s Standing Rules. Changes to the Standing Rules require a two-thirds supermajority to overcome a filibuster and invoke cloture, meaning that if the Senate were at its full complement 67 senators would have to vote to limit debate on the rules change (which could then be adopted by a simple majority). This means that under the Senate’s current rules & precedents, an effort to end the legislative filibuster would itself be subject to a filibuster.

The Congressional Research Service observes that the Senate could attempt to change its rules while avoiding a supermajority vote through the nuclear option: a series of procedural maneuvers resulting in a simple majority vote on a motion to table a point of order objecting to the procedural change (effectively ruling the change in order). But the Senate would have to ignore existing procedures for how the presiding chair addresses points of order to establish a new precedent.

— Eric Revell

(Photo Credit: U.S. Senate / Public Domain)