Republicans Poised to Nuke Legislative Filibuster

In 2017, Majority Leader Mitch McConnell, R-Ky., pledged not to abolish the legislative filibuster. He did so to persuade his fellow Republicans to back his plan to use the nuclear option to confirm Neil Gorsuch to serve on the Supreme Court over Democrats’ objections. Today, McConnell once again wants his colleagues to go nuclear. However, this time his stated goal is to pass a resolution, authored by Roy Blunt, R-Mo., and James Lankford, R-Okla., that would speed up the confirmation process by changing the Standing Rules of the Senate. Yet using the nuclear option to force the Blunt-Lankford resolution through the Senate over Democrats’ objections will require McConnell to violate his two-year-old pledge not to abolish the legislative filibuster.

Two Types of Filibuster?

Republicans rationalized their support of the nuclear option in 2017 by making a distinction between two types of the filibuster: judicial and legislative. At the time, many reasoned that it was ok to use the nuclear option to abolish the judicial filibuster even while they opposed using it to eliminate the legislative filibuster. McConnell underscored this distinction on the eve of triggering the nuclear option to confirm Gorsuch. “I don’t think the legislative filibuster is in danger. It’s a longstanding tradition of the Senate…The business of filibustering judges is quite new.”

Notwithstanding McConnell’s claim that the judicial filibuster is new, senators have long distinguished between it and the legislative filibuster. For example, Majority Leader Bill Frist, R-Tenn., explicitly reiterated his support for a senator’s ability to filibuster legislation while simultaneously campaigning for the elimination of the judicial filibuster in 2005. Frist observed, “It’s called the nuclear option. It’s really a constitutional option…It’s not we’re against all filibusters of every piece of legislation.”

Executive and Legislative Business 

When Republicans used the nuclear option to abolish the judicial filibuster in 2017, the Senate was in Executive Session (to consider Gorsuch’s nomination). The term Executive Session refers to the Senate’s procedural posture when it considers executive business- international treaties and presidential nominations- pending on the Executive Calendar. Using the nuclear option in that procedural posture thus meant abolishing the filibuster for presidential nominations only. 

In contrast, Republicans’ will implement their plan to use the nuclear option in the coming weeks to pass the Blunt-Lankford resolution while the Senate is in Legislative Session. The term Legislative Session refers to the Senate’s procedural posture when it considers legislative business- bills and resolutions- pending on the Legislative Calendar. Using the nuclear option in this procedural posture will, therefore, abolish the legislative filibuster in some circumstances.