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Will Republicans kill the filibuster?

Dylan Matthews is a senior correspondent and head writer for Vox's Future Perfect section and has worked at Vox since 2014. He is particularly interested in global health and pandemic prevention, anti-poverty efforts, economic policy and theory, and conflicts about the right way to do philanthropy.

One of the most significant legislative events of the last Congress was Senate Democrats' successful attempt to weaken the filibuster. It was the culmination of years of resentment by Democratic senators and the Democratic base, which had been building at least since the stimulus package was subjected to a filibuster just after President Obama took office.

But with Republicans taking control of the Senate, the Democrats' filibuster reforms may not survive long. Toward the end of the election, Sen. Bob Corker (R-TN) said he thought it was "likely" a GOP majority would reverse the filibuster rule changes. Sens. Rand Paul (R-KY), Lindsey Graham (R-SC), and John McCain (R-AZ), all influential members of the caucus, have said they would like the old rules restored.

What exactly did the Democrats do that Corker and his colleagues are so eager to undo? And will the rest of the Republican caucus really want to strengthen the filibuster now that they're in the majority and the filibuster will primarily be used by minority Democrats?

What happened to the filibuster last year, exactly?

On November 21, 2013, Senate Majority Leader Harry Reid (D-NV), along with 51 other Democratic and Democratic-caucusing Senators, changed the filibuster rules to allow filibusters of judicial and executive nominees (with the exception of Supreme Court nominees) to be broken by a simple majority vote.

Formally, what happened was that Reid held a cloture vote on Patricia Millett, one of President Obama's nominees to the DC Circuit Court of Appeals, the second most powerful court in the United States. Millett got 57 votes — not enough to break the filibuster.

That's when things got interesting. Reid raised a point of order declaring that cloture had been invoked and the final vote on Millett's nomination could occur. The Senate parliamentarian (a nonpartisan civil servant) ruled the motion out of order, on the grounds that you can't invoke cloture without a supermajority. But the Senate parliamentarian can be overruled by a majority of the Senate. So Reid appealed, and he and 51 other Democrats voted to overrule the parliamentarian.

That changed the Senate's rules — and weakened the filibuster. Then a final vote occurred, and Millett was confirmed.

Back up - remind me how filibusters work again?

mr smith goes to washington

Yeah … filibusters doesn't really work like they did for Jimmy Stewart. (Silver Screen Collection/Getty Images)

A filibuster is a procedural method by which senators can require 60 votes (three-fifths of the Senate) to pass a bill or approve a nominee, rather than a simple majority. Traditionally, the term is associated with attempts to delay votes by speaking for as long as possible. That's the kind of filibuster that Robert Byrd, Strom Thurmond, and other Southern Senators used to try to block the Civil Rights Act of 1964, and it's the kind depicted in and romanticized by Mr. Smith Goes to Washington.

In the modern era, however, continuously talking isn't that common. For the most part, modern filibusters either use procedural delays (like repeatedly asking the Senate to check who's present) or happen by way of private communication with the Senate Majority Leader, who then declines to bring a matter to a vote if he's not sure he can get 60 votes. The majority can force an old-school talking filibuster if it really wants to, but doing so would give the opposition a powerful platform, which the majority is eager to avoid.

Why did Democrats want to change the filibuster?

pillard millett wilkins

President Barack Obama announced the nominations of Robert Wilkins (left), Nina Pillard (second from left), and Patricia Millett (right) on June 4, 2013. The three nominees were only confirmed months later, after a historic change to the Senate filibuster rule. (Mark Wilson/Getty Images)

The filibuster used to be a relatively rare tactic, mostly used by Southern segregationists to block civil rights legislation. But it's become sufficiently common in recent years as to effectively constitute a supermajority requirement for passing legislation or approving nominees, especially after Senate Democrats gained a majority in 2007:

Filibuster votes cloture
Interest in weakening the filibuster began growing upon President Obama's election, when Senate Minority Leader Mitch McConnell (R-KY) began a strategy of total opposition to the administration's agenda. Every piece of Obama's agenda in the first two years of his presidency — the stimulus, Obamacare, the Dodd-Frank financial reform bill, etc. — was subjected to a 60 vote threshold. In those three cases, Democrats got around it; Obamacare passed during a brief period when Democrats had a 60 vote majority, while Dodd-Frank and the stimulus peeled off a couple moderate Republicans. But the 60-vote threshold was a major factor in the defeat of Obama's two other legislative priorities, cap and trade and immigration reform.

Freshman Senators Tom Udall (D-NM) and Jeff Merkley (D-OR) were the most influential proponents of reform, with Udall in particular adamant that the Senate was able to reform the filibuster by a simple majority vote. Sens. Michael Bennet (D-CO) and the late Frank Lautenberg (D-NJ) issued their own, fairly modest, reform proposals, and Sens. Tom Harkin (D-IA), who has supported filibuster reform since the 1990s, and Jeanne Shaheen (D-NH) came out with a plan that would eventually allow a simple majority to break filibusters. But veteran Democrats like Sen. Carl Levin (D-MI) were skeptical, and Harry Reid quashed a reform attempt in 2010.

Later, he would apologize to Udall and Merkley for that. By the time he came around, though, Republicans controlled the House, meaning the filibuster mostly mattered for judicial and executive appointments.

The proximate cause of the November 2013 reforms was the nomination of Millett, Nina Pillard, and Robert Watkins to the DC Circuit, which is even more powerful than usual in the Obama administration. It has considerable say over administrative law, including the drafting and implementation of rules deriving from Obamacare and Dodd-Frank, so a hostile DC Circuit could have negated a lot of Obama's legacy.

There was also frustration about the pace of executive confirmations. Republicans blocked the confirmation of Consumer Financial Protection Bureau director Richard Cordray for years, with Obama eventually making a recess appointment to get him in office. Enough nominees to the National Labor Relations Board were blocked that the agency, which is hugely important in preventing and punishing labor abuses, stopped functioning at all. Even Cabinet appointees — Labor Secretary nominee Tom Perez and EPA nominee Gina McCarthy — were being held up.

The first time Reid came close to using the nuclear option, it was over these appointments, and he signaled he wouldn't touch the filibuster for judicial nominees. But eventually, Reid and McConnell reached a deal approving Perez, Cordray, McCarthy, and two other nominees, in exchange for President Obama withdrawing his NLRB appointments and picking new ones. It would take another few months for the change to occur, and the fact that the DC Circuit was at stake lead to it covering judicial nominations too.

What will Republicans do to the filibuster?

We don't know. McConnell has made contradictory statements about his intentions. In June 2013, as the nuclear option fight was heating up, he declared, "There is not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything," which was widely interpreted as a threat to eliminate the filibuster entirely upon retaking the Senate.

And in 2005, as Senate Majority Whip, McConnell was supportive of then-Majority Leader Bill Frist's plan to get rid of judicial filibusters, which a bipartisan coalition scuttled at the last minute. "If we can only change an abominable rule by majority vote," he said at the time, "that is in the interests of the Senate and in the interests of the nation."

But in March 2014, he implied he'd seek to restore the old rules if in the majority. Since the election, he hasn't clarified his stance, but he has indicated he's willing to use budget reconciliation — which exempts bills from filibusters — to repeal Obamacare.

There's not a whole lot of reason for McConnell to further weaken the filibuster at the moment (or even to keep the existing reforms). Abolishing it could allow more bills to go to President Obama's desk, which, while probably not resulting in many being signed, could make Obama and the Democrats look bad.

But should Republicans gain the White House in 2016, and maintain their House and Senate majorities, expect there to be more interest in the GOP caucus in filibuster reform, for the same reasons Democrats made the change in the first place.

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