The Filibuster in a Post-Nuclear Senate

Richard Arenberg, an expert on Senate procedure, wrote an interesting article on Monday asking “Would a new Senate majority abuse the budget reconciliation process?” This question matters if one assumes that the minority still has the power to filibuster in the Senate. But does it?

The Senate “nuclear option” ruling a year ago did not, of course, purport to eliminate the filibuster entirely. The words of that ruling apply only to non-Supreme Court nominations. But these words are meaningless. The only principle that can be derived from the ruling is that the Senate majority is not obliged to comply with Senate Rule XXII (or, presumably, with any other Senate rule) if it chooses not to do so.

The Republicans, it may be noted, have committed publicly to maintaining the filibuster and perhaps even reversing the exercise of the nuclear option. But even if the Republicans want to do so, they cannot restore the status quo ante (at least not by themselves).

Of course, the new Senate majority could refrain from bringing measures to a final vote unless there are 60 votes in favor of doing so. It could do this even if there were no Senate rule regarding the subject. But such restraint would not undo the nuclear option ruling. It would merely establish, as a factual matter, that the current majority does not choose to disregard Senate Rule XXII.

The Senate could formally overturn the nuclear option ruling. Doing so, however, would not have any more precedential value than did similar actions in the past. There is no reason to believe that a formal overruling of the nuclear option would prevent a future Senate from invoking the nuclear option again to prevent filibusters for nominations or any other matters. It would in effect entrench the filibuster only for as long as the Republicans hold the majority, an outcome that the Republicans would presumably find unattractive.

The Senate Republicans may also find that they have a problem with their constituents. If the Democrats filibuster a measure that is important to the Republican base, it will be difficult to explain why the Republican majority is bound to adhere to rules that their opponents do not recognize.

Perhaps there is a way for the Senate to entrench Rule XXII in a way that makes it once again genuinely binding on the body. But this would require the agreement of both parties. Perhaps a formal repudiation of the nuclear option accompanied by enactment of a new process for changing the rules, such as I suggested here, would do the trick. Short of this, Senate Rule XXII should now be considered more of a guideline than a rule.




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