Before Democrats Go Nuclear on the Filibuster, They Should Read the Senate's Own History

The contest over who will lead the new Democratic Senate majority has turned into a contest over one of the Senate's oldest traditions: the minority's right to keep debating. Sen. Chris Van Hollen of Maryland announced Thursday that he will challenge Chuck Schumer for majority leader, and Senate Democrats will settle the race by secret ballot on Dec. 1, Axios reported. Van Hollen conceded he is the underdog but said more than 10 senators are with him, according to Axios, which listed Sens. John Fetterman, Ruben Gallego, Kirsten Gillibrand, Mark Kelly, Jacky Rosen, Brian Schatz and Sheldon Whitehouse among Schumer's public supporters.

The filibuster sits near the center of the challenge. The Washington Current reported that Van Hollen said Democrats must eliminate the Senate's current supermajority filibuster, the rule that lets a minority of senators block a final vote on legislation. He also argued, according to the outlet, that Democrats should be unafraid to pass bills whether or not President Trump vetoes them. Stated fairly, the proposal is to replace the 60-vote threshold for most legislation with a simple majority, so a united majority party can move its agenda without the other side.

It deserves a serious answer, and the Constitution, the Senate's own history and the plain fact that no majority lasts forever supply one.

Start with the founding document. Article I, Section 5 gives each chamber of Congress the power to "determine the Rules of its Proceedings," and the Congressional Research Service notes that the Senate treats itself as a continuing body whose rules carry over from one Congress to the next until they are formally amended. The filibuster is not written into the Constitution. It exists, CRS explains, because the Senate's rules deliberately decline to place specific limits on a senator's right to take part in debate. That choice fits the Framers' design of a smaller, slower chamber with longer terms, built to give the country a second look before it changes course.

For most of its history the Senate had no way to force an end to debate at all. According to the Senate's official history of the rule, nothing in the chamber's rules allowed senators to cut off debate and compel a vote until 1917, when the Senate adopted a cloture rule requiring a two-thirds majority. Even then, the Senate's account says, filibusters remained an effective way to stop legislation because two-thirds was so hard to reach, and cloture succeeded only five times in roughly the four decades that followed. In 1975 the Senate lowered the bar to three-fifths of the full chamber, or 60 of 100 senators.

Under Rule XXII today, ending debate on a bill still takes three-fifths of the full Senate, while changing the Senate's rules themselves requires two-thirds of the senators present and voting, according to CRS. The rules already contain an honest way to change the filibuster: persuade a broad, bipartisan supermajority. The so-called nuclear option skips that step and lets a bare majority rewrite the practice by precedent. If the Senate is meant to be the saucer that cools hot legislation, the minority's right to insist on debate is what keeps the saucer on the table.

In 2013, Democrats used the nuclear option so that lower-court nominees could be confirmed by a simple majority, while leaving Supreme Court nominations under the old rule, according to the Senate's own history and Fox 29. Four years later, with a Republican president and a Republican Senate, Democrats tried to filibuster Neil Gorsuch, and Republicans extended the same simple-majority standard to the high court. Gorsuch was confirmed 54-45. The shortcut Democrats built for their own nominees became the tool that seated a conservative justice they could not stop.

That is the common-sense lesson. A rule that a majority bends for itself today will be used by the other party tomorrow. Protections for the minority are not gifts to one party. They belong to every American whose senators happen to be outnumbered in a given year, and that is every American sooner or later.

Some of the most striking resistance comes from inside the Democratic caucus. In a Washington Post op-ed this summer, reposted on his Senate website, Fetterman wrote that he was wrong to campaign on ending the filibuster and that history has vindicated former Sens. Joe Manchin and Kyrsten Sinema, the Democrats who defended the rule. He called the 60-vote threshold a vital line of defense against President Trump enacting whatever laws he chose.

Conservatives will not share all of Fetterman's reasons, but his conclusion is sound: a rule that shielded his party when it was outnumbered will shield Republicans when they are, and in both cases it forces the bargaining durable laws require. Axios counts Fetterman in Schumer's corner, a sign of how tangled the two fights are.

The next marker is the Dec. 1 secret ballot. Whoever wins, going nuclear would still take a simple majority, and every Democrat who stands with Fetterman narrows that path. The Constitution trusted the Senate to write its own rules. The wiser course is to keep the rule that has outlasted every majority that wanted it gone.