Quora Question: Will the Senate Scrap the Filibuster for Legislation?

Judge Neil Gorsuch is sworn in to testify at his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., on March 20. Senate Republicans invoked the so-called nuclear option to confirm Gorsuch, which lowers the number of votes required to confirm Supreme Court nominees to 51 from 60. James Lawler/Reuters

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Answer from William Murphy, professor of American history:

The Senate has eliminated the filibuster on Supreme Court nominations. The so-called (and badly named) "nuclear option" has been deployed.

But it has only been changed for Supreme Court nominations, just as Democrats in 2013 used it to only eliminate the filibuster for all presidential appointments except Supreme Court justices. The important thing to understand is that, in both cases, filibusters were historically very rare for the kinds of things affected by the change in the rules. There has only been one other (unsuccessful) attempt to filibuster a Supreme Court nomination in modern history. And while filibusters for other presidential appointments have been a little more common, they were still pretty rare for most of the Senate's history.

But legislation is a different story. Up to this point, neither party has actively considered nuking the filibuster for ordinary legislation. The current action by the Republican majority does not affect the filibuster for legislation, like tax reform.

Could the Republican majority use it again to eliminate the legislative filibuster? Yes. Will they?

I don't know. I don't think they will right away, but I think it is inevitable. The number of cloture motions—meaning the number of times it was necessary to call a vote to end debate, which is an indication of the number of filibusters—increased markedly from 1960 to 2012 and reached unprecedented levels during President Obama's first term, when Republicans were in the minority.

It's very unlikely that the filibuster is sustainable when it as used as frequently as it has been in recent years. It has gone from a rarely-used device to part of the everyday life of the Senate. As a result, it is probably inevitable that one party or the other will, sooner or later, eliminate the filibuster altogether.

Will Republicans do it to advance their current legislative agenda? Maybe. The thing that has kept either party from doing so up to now is that they both want the filibuster available to them when they become the minority again. So the question will be whether they want to push their agenda as far as possible now, with the knowledge that they will be unable to stop Democrats from doing the same when they are in the majority again, or whether they will be more concerned about protecting a weapon that they have deployed very effectively when they are the minority.

As far as tax reform goes, they already have a plan to pass that without needing to eliminate the filibuster; they plan to use the budget reconciliation process, which cannot be filibustered. This will actually be much easier on taxes than on healthcare, the other issue they have been trying to address through reconciliation. That doesn't mean that passing tax reform will be easy, just that it's a more natural fit for the reconciliation process than healthcare is. Only measures that affect the deficit can be passed through reconciliation, which is why their health care bill could not repeal all of the Affordable Care Act, just the parts that affect spending. But on taxes, just about everything they do would be likely to affect the deficit one way or another, so they won't have to struggle to make a tax reform package fit the reconciliation rules like they do with healthcare. So it seems like tax reform is not likely to be what leads to the end of the legislative filibuster, if anything does.

I should also point out, on tax reform, since the rules on budget reconciliation forbid using it for anything that increases the deficit over a period of more than 10 years, it is likely that any tax package which passes will have a 10-year 'sunset provision' like the Bush tax cuts did (which were also passed partially in this way).

But something will end it sooner or later. As long as the filibuster is being used as often as it has been over the past decade or so, sooner or later, one party will get fed up while in the majority and nuke it.

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