Examining the Nuclear Fallout from the Senate’s Filibuster Vote


Democrats are celebrating the change in the interpretation of the Senate’s filibuster rules as a “victory for democracy.”  Republicans are “singing the blues.”  But, filibuster reform is not a partisan issue; at least it wasn’t until now.


As Nelson Mandela said, “Where you stand depends on where you sit.”  Majorities in the Senate of whichever party have typically been impatient with the filibuster and wanted to see it reformed.  Minorities fought for the privileges of unlimited debate and unfettered amendments protected by the filibuster.


This time, the Republicans crossed a line.  They goaded the Democratic majority into a short-sighted and tragic action.  Republicans blocked so many of President Obama’s nominations that Democrats became desperate to “make the Senate work again.”  The argument that President Obama’s appointments of Patricia Millett, Nina Pillard, and Judge Robert Wilkins to fill three existing vacancies on the D.C. Circuit Court of Appeal amounted to “packing the court” was blatant and transparently absurd.


The Democrats used the so-called “nuclear option” to bulldoze the Senate’s cloture rule at least as it applies to judicial and executive branch nominations.  This was accomplished first by voting to take up the reconsideration of the cloture vote on the Millett nomination.  Cloture had failed on October 21 by a 55-38 vote. At the time, 60 votes were necessary in order to invoke cloture and end debate.  This time, once the Senate voted to reconsider the cloture vote, Majority Leader Harry Reid (D-NV) raised a point of order that “the votes 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 of the Senate, Senator Patrick Leahy (D-VT) declared, “Under the rules, the point of order is not sustained.”


The majority leader appealed the ruling of the chair.  Under Senate precedent, an appeal of a ruling

related to a cloture vote (even if cloture has not yet been invoked) is a “non-debatable” matter.  This is crucial.  If the appeal had been debatable, it could itself have then been filibustered by the Republicans.  Since it was not, the Senate majority was able to overturn the presiding officer’s ruling, thus establishing a new precedent in the Senate that cloture to end debate and confirm judicial nominations except for the Supreme Court and executive branch nominees could be accomplished by simple majority votes.

This was an unprecedented action.  Many Democrats, including Majority Leader Reid, maintained that the Senate has changed the effect of rules using this same procedure many times.


However, all of those previous occurrences were changes in precedents of a different type.  The issue raised by those points of order addressed interpretations of ambiguities in the rules.  This “nuclear” action required the Democratic majority to vote to create a new precedent contradicting the clear language of Rule XXII. The Democrats (all but three of them) voted to interpret the words, that the “question is decided in the affirmative by three-fifths of the Senators duly chosen and sworn” as meaning “cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.”  They voted that three-fifths means simple majority. They voted to declare that black is white.  All of the previous decisions were analyzing issues that were grey.


What does this change mean for the future of the Senate?  Senator Carl Levin during the floor debate said it exactly correctly, “Overruling the ruling of the Chair, as we have now done, by a simple majority is not a one-time action. If a Senate majority demonstrates it can make such a change once, there are no rules which bind a majority, and all future majorities will feel free to exercise the same power—not just on judges and executive appointments but on legislation.”


I do not believe that the elimination of the filibuster for judicial nominations now that the precedent is established can long exclude Supreme Court nominations.  The first time that a president’s Supreme Court nominee is filibuster, this precedent will be rolled out and the rule changed.

The elimination of the filibuster for legislative matters will only await an issue important enough to the Senate majority– lifting the debt ceiling to avoid default for example or in a Republican Senate, the repeal of Obamacare.  In the long run, now that there is a precedent to use this brand new simple majority precedent, majorities will do what majorities do.  That is, take control.

Before long, the Senate will then be a majoritarian body like the House of Representatives tightly controlled by its majority party.  In the House, the minority is rarely consulted, speech can be severely limited and amendments are often not permitted at all.


Although no senator to my knowledge has been calling for the outright elimination of the filibuster, there are many outside the Senate who do.  They argue that democracy is majority rule, so giving complete control to the Senate majority is a good thing.  However, democracy requires a balancing of majority rule with the protection of the rights of the minority.  The Senate has been unique for more than 200 years in its protection of the privileges of the minority, particularly the rights to debate and to offer amendments.


Past majority leaders of both parties have argued for the protection of these privileges through the right to filibuster.  Republican Majority Leader Howard Baker referred to the use of budget procedures to circumvent the filibuster and end debate as a “break of faith with the Senate’s historical uniqueness as a forum for the exercise of minority and individual rights.”  Republican Bob Dole called the filibuster, “…one of the hallmarks of our Democracy.”


Democrat Mike Mansfield declared that “[T]hose who complain… are complaining against… the ever-present fact of frustration, the frustration of working in this body, the frustration of half a loaf, the frustration of compromise that of necessity is always with us…Yet less than absolute power to achieve one’s will is also an essential of democracy.”  Democrat Robert Byrd declared, “The filibuster has become a target for rebuke in this efficiency-obsessed age in which we live… It does, however, take more than a little thought to understand the true purpose of the tactic known as filibustering and to appreciate its historic importance in protecting the viewpoint of the minority… In many ways, the filibuster is the single most important device ever employed to ensure that the Senate remains truly the unique protector of the rights of the people that it has been throughout our history.”  Majority George Mitchell said, “[T]he right of unlimited debate is a rare treasure which you must safeguard. Of course, it can be, and it is, abused. But that is the price that must be paid, and the privilege is worth the price.”  Tom Daschle argued,  “The Senate’s longstanding institutional checks on the majority make it easier for the minority to block initiatives than for the majority to pass them… activists have accused … senators of subjecting legislation and nominees to ‘unconstitutional’ filibusters, claiming the founders never envisioned a cloture requirement.  The former allegation is both false and hypocritical… The latter statement—that the founders never anticipated cloture—is correct, since the founders never provided any means to cut off debate… The founders envisioned a Senate that would vigorously protect the rights of the minority against a reactionary majority.”


But, perhaps the strongest defense was made by Majority Leader Lyndon Johnson who said,  “If I should have the opportunity to send into the countries behind the iron curtain one freedom and only one, I know what my choice would be.  I would send to those nations the right of unlimited debate in their legislative chambers…  If we now, in the haste and irritation, shut off this freedom, we shall be cutting off the most vital safeguard which minorities possess against the tyranny of momentary majorities.”


Perhaps the Senate can find a way to reverse course and limit the damage.  Given the slippery slope to ever-greater majority power, it will be difficult if not impossible to find a way back.






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Richard A. Arenberg

Brown University