Thread by @ChadPergram

1) The Hitchhiker’s Guide To What Democrats May Do To Alter the Filibuster for Voting Rights

2) Senate Majority Leader Chuck Schumer (D-NY) has not yet tipped his hand to what sort of votes the Senate may take in the coming days regarding voting rights or a potential vote or votes alter the filibuster.

3) Regardless, at this stage, Schumer lacks the votes to overcome a GOP filibuster of the bill. Schumer is also short on votes to alter Senate filibuster provisions. Therefore, Schumer doesn’t have the votes to pass the bill.

4) Those three things are the only certainties about the Senate over the next few days.

Schumer has just said that the Senate will take a vote related to voting rights and the filibuster sometime between now and Martin Luther King Day, Monday, January 17.

5) It’s possible the Senate could be in session this weekend and, those key votes, could fall over the weekend.

So, let’s start with the possibilities:

Schumer attempted to bring up voting rights measures on a couple of occasions last year.

6) Breaking a filibuster just to launch debate on a bill, and, closing debate on the underlying bill itself, requires 60 votes. Schumer has at least one or two of these “failed” procedural votes leftover in his hip pocket.

7) A failed procedural vote to end a filibuster (known as a cloture vote) is what Schumer needs if he tries to alter Senate procedures surrounding the filibuster.

8) Or, Schumer could force the issue on a “motion to proceed” to call up one of the two voting bills Democrats are touting now. A failure to break the filibuster to start debate would give Schumer a third failed cloture vote with which to work to change filibuster provisions.

9) Such a gambit is called “the nuclear option.”

Schumer and others have repeatedly referred to a prospective Senate “rules change” regarding the filibuster. Any move on the filibuster would be anything BUT a rules change.

10) What Schumer and others are really talking about is establishing a new Senate PRECEDENT.

The Senate has 44 Standing rules. But one must first overcome a filibuster to make an actual change to those rules.

11) And, the Senate currently entails 67 (!) votes to end a filibuster on a rules change.

So, that’s not going to work.

However, the Senate conducts much of its business based on precedent.

12) This is a voluminous set of parliamentary criterion based on previous Senate maneuvers. In short, if you struggle to change “the rules,” perhaps try to “establish a new precedent.”

Democrats detonated Nuclear Option I when they held the majority in 2013.

13) Democrats were frustrated with GOP filibusters of President Obama’s executive branch nominees. The late Senate Majority Leader Harry Reid (D-NV) took a failed cloture vote on an executive branch nominee (the necessary tool to establish a new precedent)...

14) ...and lit the fuse to lower the bar for all future nominees – except those tapped for the Supreme Court. When the GOP was in the majority in 2017, then-Majority Leader Mitch McConnell (R-KY) used a similar approach for Nuclear Option II.

15) McConnell specifically dropped the threshold to end filibusters on Supreme Court nominees from 60 to a simple majority.

What’s left in tact is the 60 vote requirement to end filibusters related to legislation.

16) Both voting rights bills are legislation, not nominations – as was applicable with Nuclear Options I, and II.

Let’s say Schumer tries to bring up one of the voting rights bills. He must file a “cloture petition” to proceed to the bill.

17) By rule, cloture petitions require an “intervening day” before they are “ripe” for a vote. So, let’s say Schumer files cloture to end debate on the motion to proceed to one of the voting bills Wednesday.

18) By rule, the Senate can’t actually take the cloture vote until Friday. Thursday serves as the “intervening day.” Thus the Senate would vote Friday to break the filibuster to start debate on the voting bill.

19) If it fails to marshal 60 yeas, Schumer has the tool needs to go nuclear: a failed cloture vote. This is where Schumer could trip the nuclear wire. From a parliamentary standpoint, the Senate must find itself in a “non-debatable posture” in order to trigger the nuclear option

20) A failed cloture vote is such a non-debatable position. By rule, there is no other debate permitted. This parliamentary cul-de-sac is essential. It’s the only parliamentary locus where Schumer could initiate a nuclear option.

21) In fact, Schumer is inhibited from going nuclear at another other parliamentary point. But a failed cloture vote is a unique circumstance in the Senate – pulsing with parliamentary isotopes.

22) If Schumer is using a “new” voting bill which failed to get 60 yeas, he must switch his vote to wind up on the “prevailing side” of the cloture vote. In other words, the Republicans won. The “nay” side (against ending the filibuster) won.

23) By briefly siding with the GOP, Schumer is allowed to demand a re-vote on the same issue. Schumer may not make a point of order that the Senate only needs a simple majority (51) votes to terminate debate and break filibusters related to voting rights.

24) Whatever Democratic senator is presiding – or, Vice President Harris – will rule that Schumer is wrong. That is NOT how the Senate operates. 60 votes are necessary. But Schumer would then appeal the chair’s ruling, saying in essence IT IS IN FACT the way the Senate operates.

25) The Senate ONLY NEEDS 51 votes to end filibusters related to voting rights bills. That is the “filibuster carve out” for voting rights that we have heard so much about.