As I write, the government shutdown has lasted 41 days – the longest shutdown in history. For those who don’t interact much with the federal government, this shutdown may be barely noticeable. For soldiers, federal employees, and travelers with canceled flights due to air traffic controllers calling in sick, the consequences are more severe. If a plane crash or other disaster results, the shutdown could be catastrophic.
What’s the Shutdown?
The government is shut down because congressional Democrats and Republicans were unable to agree on a budget. Democrats sought to renew Affordable Care Act subsidies that were scheduled to expire, increase Medicaid funding, and allocate more resources to social programs. Republicans opposed these increases but favored increased defense spending. Democrats refused to vote for the appropriations bill unless their increases were included; Republicans call their refusal a “1.5 trillion ransom note to taxpayers.”
Republicans have a 53-47 majority in the Senate, but Senate rules require the affirmative vote of 60 senators to invoke cloture (a procedure to end debate and proceed to a vote). On Nov. 9, seven Democrats and one Independent joined 52 Republicans in voting for cloture, thus reaching the 60-vote requirement. As a result, this shutdown may be resolved by the time this piece goes to press, or shortly thereafter.
What’s the Filibuster?
But how can a minority of 41 senators stop the entire Senate from voting on a bill? Is that even constitutional?
The Constitution doesn’t say anything about filibusters, but Article I, Section 5, says “Each House may determine the Rules of its Proceedings.” In keeping with the American tradition of enabling majority rule while recognizing minority rights and also the wisdom of slowing hasty legislation, the Senate, from its inception, allowed unlimited debate before voting on a measure. Pennsylvania Sen. William Maclay wrote in his diary on Sept. 22, 1789, that the “design of the Virginians … was to talk away the time, so that we could not get the bill passed.” In 1841, as Democrats filibustered against a bill to establish a national bank, “Whig Sen. Henry Clay of Kentucky threatened to change the Senate rules to limit debate,” the United States Senate website explains. “I tell the Senator, he may make his arrangements at his boarding house for the [entire] winter,” Alabama Democrat Sen. William King responded. While the filibuster rule allowed minorities to protect their positions, it frustrated majorities who saw their bills thwarted.
At President Woodrow Wilson’s insistence, Senate Rule 22 amended the filibuster rule in 1917 to allow a two-thirds majority to invoke cloture and end debate. In 1919, Rule 22 was invoked to end a filibuster against the Treaty of Versailles, which marked the end of World War I. Because a two-thirds majority was difficult to attain, the Senate changed the rule in 1975 to require only three-fifths (60) for cloture. South Carolina Sen. Strom Thurmond, a conservative Democrat who later became a Republican, held the record for the Senate’s longest speech by filibustering for 24 hours and 18 minutes against the Civil Rights Act of 1957, until April 2025, when Sen. Cory Booker (D-NJ) spoke for 25 hours and 5 minutes against President Trump’s policies.
In the current shutdown, Democrats are using the threat of a filibuster to prevent the Republican majority from passing the appropriations bill. As military and other personnel are not paid and essential governmental functions threaten to grind to a halt, Republicans are threatening to use the “nuclear option.”
The nuclear option is a parliamentary move to circumvent the threat of filibuster. It might work something like this:
- A senator on the majority side raises a “point of order” challenging the prevailing interpretation of Rule 22, arguing that a simple majority instead of a two-thirds vote should apply to bring cloture for a particular bill.
- The presiding officer or parliamentarian rules that the point of order is invalid because Rule 22 requires a three-fifths vote.
- The senator who made the motion then appeals the presiding officer’s ruling to the full Senate. An appeal of the chair’s ruling is not debatable, so it cannot be filibustered.
- The full Senate then votes on the appeal. If the majority votes to overrule the presiding officer’s ruling, the point of order stands, and Rule 22 is effectively amended or suspended for that particular bill.
- A senator can then move to close debate, and that motion will require only a simple majority.
The nuclear option is not new:
- In 2013, during the Obama presidency, Democrats used the nuclear option to amend Rule 22 so that it no longer applies to most executive and judicial nominees.
- In 2017, during the Trump presidency, Republicans used the nuclear option to require only a simple majority for Supreme Court nominees.
- In 2019 the nuclear option was again used to limit debate time for lower-level executive nominations and district court nominations.
The nuclear option is so named because it is an explosive measure that invites retaliation. It is constitutional and legal. But the more we use it, the more our opponents will use it against us when they are the majority.
The filibuster, frustrating as it can be, is consistent with the American framers’ view that the majority should not run roughshod over the minority, that in making policy, all factions should have a voice. Eliminating the filibuster would undermine consensus and bipartisanship, marginalizing minority parties.
Perhaps the filibuster practice needs to be modified, such as limiting its duration or prohibiting it on issues related to public safety.
But is eliminating it, or using the nuclear option to bypass it, a sound idea in the long run?
I’m glad I don’t have to decide that question – at least not today.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church (woodlandpca.org) of Notasulga, Alabama. He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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