Thread by @ChadPergram

1) There is talk Dems could try to end the Senate filibuster if they win control this fall. The filibuster exasperates the majority. But the minority always embraces it. GOPers warn Dems could try to pass Green New Deal/Medicare for All & gun control if they kill the filibuster

2) Fmr Senate MajLdr Reid to Fox: “It’s not a question of if (the filibuster) is going to be gone. It’s a question of when it’s going to be done,” said Reid. “The filibuster is history. It won’t be in existence next year at this time.”

3) That said, Schumer is cagey when asked about eliminating the filibuster. He says nothing is "on the table" or "off the table."

4) For a moment, let’s examine the hallmark of the Senate. Unlike the House of Representatives, the Senate is a body of equals. Each senator ostensibly carries equal weight. As such a big body with 435 members, the House is parsimonious when forking out debate time.

5) “The fundamental difference between the two houses is that House members are limited as to how long they can debate. In the Senate, debate is unlimited. Each, individual senator has an enormous amount of leverage,” said former Senate Parliamentarian Alan Frumin.

6) That said, it’s rare for senators to hold forth with long-winded speeches to actually stall legislation. Most filibusters are simply threats. A senator or group of senators makes it clear to leaders that they will use their prerogatives on the floor to derail a given bill.

7) It is often said that the House is a majoritarian institution, favoring the party which is in the majority. But by contrast, the Senate is a minoritarian institution, granting significant power to the side which has fewer members.

That is the Senate’s quintessence.

8) But, the Senate has long had a method to sidetrack filibusters. It’s called “invoking cloture.” If the Senate rounds up 60 votes, it can “invoke cloture” and neutralize a filibuster.

9) This addresses what McConnell and others predict Democrats will do if they win the Senate. Democrats could lower the bar to nullify a filibuster from 60 to a simple majority of 51.

10) It was none other than Harry Reid who cracked the door open to alter filibuster procedures in November, 2013 with what was “Nuclear Option #1.” Reid dropped the threshold from 60 votes to end a filibuster to a simple majority for all executive branch nominees.

11) This was not a rules change. The Senate conducts much of its business via precedent. In fact, the Senate book of precedent is voluminous compared to the Standing Rules of the Senate.

12) Via an inventive parliamentary gambit, Reid established a new precedent for breaking filibusters on executive branch nominations. Fifty-one yeas were now the benchmark to end a filibuster under those circumstances. Not 60.

13) In 2017, McConnell capitalized on Reid’s 2013 maneuver. The Kentucky Republican mimicked what Reid did, lowering the bar to a bare majority to overcome filibusters of Supreme Court nominees.

14) That meant legislation was the only thing senators could still filibuster. Garden variety bills would still entail a supermajority to crack a filibuster.

15) Both McConnell and Schumer long said that preserving the legislative filibuster was hallowed ground and that senators didn’t support upending that tradition. But that turf is now shifting.

16) “Why should a democracy require a 60 percent vote to get something done?” asked Reid. “It’s going to be good for the body politic to get rid of it.”

17) “This republic has benefited greatly from having an institution where, the minority, those who are our power, are not in fact, powerless,” said Frumin. “If you remove the filibuster completely, you are rendering millions and millions of people, in a sense, powerless.”

18) “The Nuclear Option” is a parliamentary maneuver to establish new Senate PRECEDENT. I repeat, the proposal we are discussing is a PRECEDENT change. NOT a rules change. The Senate has 44 “standing rules.” However, the book of “precedents” is voluminous.

19) Most of what the Senate does is based on precedent, not standing rules. Moreover, it takes 67 votes to end a filibuster leading up to a RULES CHANGE. That’s right. Not 60 yeas. 67. But, establishing a new precedent entails only a simple majority.

20) In November, 2013, Senate Democrats (then in the majority) initiated the nuclear option. They lowered the bar to break a filibuster from 60 yeas to 51 yeas on all executive branch nominees such as federal judges and cabinet secretaries, EXCEPT the Supreme Court.

21) It is said that paybacks are hell. In April, 2017, GOPers (now in the majority) initiated a nuclear option of their own. GOPers dropped the filibuster bar for SCOTUS nominees. That’s how they confirmed Supreme Court Justice Neil Gorsuch, and, later, Justice Brett Kavanaugh.

22) Here’s what established the current “precedent” under which the Senate operates:

Gorsuch faced a filibuster. Gorsuch’s nomination had more than 51 yeas for confirmation. But he lacked 60 to end the filibuster.

23) The Senate voted to close debate on Gorsuch’s nomination (cloture). But that roll call came up short. So, we had a FAILED CLOTURE VOTE. This is key and where the “nuclear option” comes in. McConnell obviously supported finishing debate on Gorsuch nomination.

24) But McConnell switched his vote at the end of the failed cloture vote from yea to nay. The Senate allows senators to call for a “revote” if they are on the prevailing side of the issue. In other words, Gorsuch got a simple majority. But the “noes” prevailed.

25) So McConnell became a no. This gave McConnell the option of asking the Senate to “reconsider” the failed vote and make another run at invoking cloture. Once McConnell switched his vote, he could move to proceed to the failed cloture vote. That only needed 51 yeas.

26) Then McConnell made a motion for the Senate to retake the failed cloture vote on Gorsuch. That also just needed a simple majority. So after those parliamentary gymnastics, the Senate had RETURNED to the failed cloture vote.

27) It is often said that the Senate has “unlimited debate.” Not really. There are only a few parliamentary cul-de-sacs in which the Senate can harness debate. The do-over of a failed vote to end debate is one of them. This is where McConnell lit the fuse on Nuclear Option II.

28) McConnell simply followed the PRECEDENT established by Reid for Nuclear Option I. Senate Rule XXII governs cloture in the Senate. So McConnell raised a point of order that “the vote on cloture under Rule 22 for all nominations to the Supreme Court is by a majority vote.”

29) A “point of order” is where a senator questions whether the Senate is operating under correct procedure. And in fact, up until then, it had been. It took 60 votes to quash a filibuster on a Supreme Court nominee.

30) But what McConnell was asserting is that the Senate wasn’t operating under current procedure.

Senate Parliamentarian Elizabeth MacDonough ruled against McConnell, citing the Senate’s established precedent of 60 votes, not 51, to break a filibuster.

31) McConnell was informed that that the “point of order is not sustained.”

But McConnell next asked the Senate to override the ruling. The Senate would then vote on “Shall the decision of the Chair stand as the judgment of the Senate?”

32) That initiated another roll call vote. Republicans voted nay. After all, they didn’t want the “decision of the Chair” based on old Senate precedent to stand. So, if a MAJORITY of senators voted against the ruling, the Senate would establish a new precedent.

33) And that’s precisely what happened.

To end the legislative filibuster, Democrats would root for the NOES to prevail.

But…

On Capitol Hill, it’s about the math, it’s about the math, it’s about the math.

34) Democrats would first need to have a majority of the Senate – and, command at least 51 yeas to establish a new precedent, overruling the Parliamentarian, to euthanize the legislative filibuster.

35) Democrats will likely have a narrow majority if they do win Senate control. But, one wonders if they could get 51 senators to stick together to end the legislative filibuster.