The Senate is Inching Towards the End of the Filibuster

Why a small vote today could lead to a big change down the line.

Photo by Harold Mendoza on Unsplash

As I wrote last week, the U.S. Congress currently exists in a strange state of equilibrium.

Neither party has the political will to eliminate the filibuster (the requirement that pieces of legislation receive 60 votes before advancing in the Senate), and for that reason, both parties (when they are in the minority, at least) insist that it is a vitally important tool that cannot be touched in any circumstance.

But parties can’t be expected to do nothing — or, even worse, only work across the aisle (gasp!) — when they are in the majority, can they? So, at the same time as both parties (when it suits them) pledge their fidelity to the filibuster, they also both agree that there are certain circumstances when the filibuster can simply be ignored. This is mutually beneficial: it might mean your rival party will get a few big things done when they’re in the majority, but it also means that your party will, too.

It’s a weird way to run a country, but it kind of works, as long as everyone sticks to the script. Both parties get to accomplish a few items of their legislative agenda every four years or so, but the country isn’t quadrennially subjected to massive, chaotic shifts in policy. Out of fear of what the other party might do if unleashed, both parties agree to limit themselves to the idiosyncratic list of bills that can be advanced in the Senate with 51 votes instead of 60.

Of course, critics would argue that majority parties are not able to usher enough of their agendas through Congress, and might question how this somewhat random list of exceptions grew to dominate our legislative process. But, in its way, it creates a fragile peace.

Republicans are poised to disrupt this delicate balance later today, with a vote that will expand one of the exceptions to the filibuster — and potentially pave the way for the rule’s elimination.

No, this isn’t related to the reconciliation process, the filibuster carve-out for fiscal bills that probably represents the most prominent exception on the list. (This process wasn’t created with the assumption that it would be used for major policy changes, but as part of our weird filibuster equilibrium, it has grown to become the main vehicle for majority parties to advance their signature policies, from Obamacare to the 2017 Trump tax cuts to the One Big Beautiful Bill Act that Republicans are currently drafting.)

We’ll get to reconciliation later.

Instead, today’s vote will hinge on the Congressional Review Act, or CRA, a filibuster exception that was created in 1996 to allow Congress — by simple majority vote — to repeal executive branch regulations in the 60 days after they’re imposed.

This tool is generally only used in the months after control of Congress and the White House has changed party hands. (The repeal resolutions still have to be signed into law by the president, and when else would a president be willing to undo a regulation from the last 60 days?) So far this year, Republicans have used the CRA to overturn seven Biden-era regulations; more than a dozen more are in the pipeline.

Partially because Congress does so little (see above), a lot of major policy changes happen by executive branch regulation these days, so the ability to overturn them (albeit within a limited window) is no small exception to the filibuster. (Although it is somewhat odd for Congress, the lawmaking body, to choose to delegate so much lawmaking power to the executive branch and then opt only to involve itself if it doesn’t like what’s been produced, as opposed to playing more of an affirmative role in the creation of the policies themselves.)

Rule No. 1 of The Equilibrium: Thou shalt not pass bills with fewer than 60 votes, but if it deals with spending and revenue (and complies with the byzantine rules of the reconciliation process) or overturns a regulation (from within the last 60 days), yeah, sure, OK.

Of course, the executive branch does a lot a more than just publish regulations (which are known in Washington as “rules”), but the Congressional Review Act says that those are the only things its fast-track process can be used to overturn. (As an example of the broad range of actions that fit under this umbrella, regulations overturned under the CRA in recent weeks include a rule setting energy conservation standards for commercial refrigerators and another capping the overdraft fees that banks can charge their customers.)

But what if — in the same way that the reconciliation process has metastasized over time — lawmakers could use the CRA to overturn other policies put in place by the executive branch, not just regulations? Imagine the sorts of agreements or guidance documents or permits that could be undone, all by majority vote.

That’s the question that Senate Republicans will place on the floor today, as they attempt to use the CRA process to revoke a trio of waivers given to California allowing the state to set stricter vehicle emission standards than the rest of the nation. (The EPA can choose to give these waivers to California, and California alone, under the Clean Air Act.)

The Government Accountability Office (GAO), Congress’ in-house auditor which plays a role in facilitating the CRA process, has said that a waiver is not a regulation and that Congress cannot use the CRA to overturn one. So has the Senate parliamentarian, the chamber’s rules referee.

But ultimately, in Congress, members set their own rules, not the GAO or the parliamentarian. Even the Senate, counter-majoritarian as it is, has a workaround process by which a majority of members can update the chamber’s precedents.

The exact process they will use is unclear, but Senate Republicans are expected to vote today to buck the guidance they’ve received and state that a California waiver is a regulation for the purposes of the CRA.

That may sound mundane, but the move could lay the groundwork for something bigger.

When Senate majorities unilaterally change the chamber’s rules, it’s often known in Washington as invoking the nuclear option.

The Senate has “gone nuclear” several times in the past few years, but only ever over nominations: Democrats ended the filibuster for all nominations expect to the Supreme Court in 2013, and then Republicans ended the filibuster for Supreme Court nominees in 2017.

If Senate Republicans move forward with their plan today, it will mark a big milestone: the first time the nuclear option has been used to advance a piece of legislation. The nuclear option has been used before, but only for nominations. And other exceptions to the legislative filibuster have been created before, but only by laws which were themselves subject to the filibuster.

This would be the first time that the 60-vote requirement has been dropped by only 51 senators in order to pass a piece of legislation.

And if the Senate crosses that line once, it will almost certainly cross it again.

The next move may come soon. Historically, senators have bowed to the parliamentarian when deciding what can and can’t go through the reconciliation process; Republicans are flirting with ignoring her advice for what can be included in the Big Beautiful Bill, another unprecedented move.

Then, the floodgates will be open.

Democrats will criticize the GOP move today — but they won’t have much of a leg to stand on. They themselves tried to blow up the legislative filibuster in 2022, and were only stopped because Joe Manchin and Krysten Sinema dissented.

The next time Democrats take power from Republicans, they will certainly take advantage of the precedents created — say, to use the Congressional Review Act to overturn fossil fuel permits, or to raise the minimum wage through reconciliation. Then Republicans will return to power and expand the carve-outs, too.

Once you start making these exceptions by majority vote, it will be very hard to stop. Eventually, the legislative filibuster will likely be cast away entirely, potentially transforming American politics and policy.

Brookings Institution scholar Molly Reynolds has been watching for this moment for a long time. She literally wrote the book on exceptions to the filibuster: in her research, she found 161 exceptions that were created between 1969 and 2014, from the Congressional Review Act and reconciliation to one that could block the liquidation of Amtrak. (But remember: those were all supermajorities agreeing to empower a simple majority, not a simple majority agreeing to empower themselves, which is what sets today’s vote apart.)

“We’re on a slow march to majority rule in the Senate,” Reynolds told me in an interview. “I think particularly if we were to see both this change to the CRA and changes in the reconciliation context, those would represent further steps down that chain.”

“We have started to ask the reconciliation process to bear so much of the legislative burden in periods of unified party control that at some point, it’s going to break,” she added.

In other words, our bizarre legislative equilibrium is so fragile, so specific, so difficult-to-navigate — and the country is so enflamed and insistent on a quicker pace of change — that it’s bound to collapse before long.

If the polarized 2010s were what finally killed the filibuster for nominations, the even-more-polarized 2020s could do the same for the legislative filibuster. For years, Congress has existed in a state of mutually assured destruction: You can’t get most of your agenda done, but we can’t either. Eventually, one party or the other will go nuclear and blow it all up.

“At some point, you will have a majority in the Senate under unified party control that has something that it really wants to do and is unified around and has enough folks to get done and that the minority is frustrating, and they will be willing to make a change,” Reynolds said. “I don’t know what that is. I don’t know when that comes. But that’s the looming question.”

The legislative filibuster is dying a death by 1,000 cuts. (Or, I suppose, 161 cuts.) It’s only a matter of time before it sustains its final wound. The Senate’s move today — a majority voting, for the first time, to alter precedent in order to skirt the filibuster to pass a piece of legislation — could mark one big step towards getting there.