Pressure to “nuke” the Senate filibuster is rising among Democrats as they seek to legislate new policy on such divisive issues as voting, guns and abortion. Last week, even President Joe Biden joined the chorus calling for a “carve-out” in Senate rules to codify now-defunct Roe v. Wade protections. One argument put forth by party activists, writers and even Hillary Clinton points to their success in raising the debt limit in December 2021 as a precedent.
But the debt limit isn’t an accurate analogy. In fact, through the multi-stage process that the Senate pursued to raise the debt limit, Democrats needed to muster a supermajority of 60 votes. Consequently, the debt limit deliberations of several months ago provide no justification for weakening the filibuster.
In December, the federal government faced the prospect of defaulting on its debt if policymakers did not raise the nation’s debt limit. Without a debt limit increase, the government would have lacked the means to pay its bills.
At the time, Republicans said that while they didn’t want to see a default, they also did not want to lend their votes to raise the debt limit. They wanted Democrats to be “held accountable” for the need to raise it in the first place.
Despite popular belief to the contrary, the Senate does not require 60 votes to pass a bill in most circumstances. It requires a simple majority in the 100-member body. Before taking a vote, however, the Senate must secure either the unanimous consent of all 100 members or, short of that, the support of 60 members to end a filibuster.
With their bare majority in the chamber, Senate Democrats could raise the debt without any Republican help. They could not, however, muster the 60 votes to end a filibuster of such a measure. With neither party seeking a default, Senate leaders decided that rather than ask Republican senators to vote on raising the debt limit, they would add a provision to an unrelated measure that created an expedited process for passing the debt limit increase. This would limit debate and prohibit other delaying tactics, effectively making a filibuster impossible.
The Senate still needed to overcome a filibuster on the unrelated measure, which it did with 64 votes. A week later, with the expedited process in place, the Senate voted to raise the debt limit on a 50-49 vote.
As a general matter, the Senate has created numerous exceptions (or “carve-outs”) to the filibuster over the last century, enabling certain policy measures to advance more easily. In fact, according to Brookings Institution scholar Molly Reynolds’s book, “Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate,” senators have proposed more than 1,000 exceptions and the Senate has created more than 160 of them.
One well-known exception involves the federal budget process. The Congressional Budget Act limits the time for debate on a budget resolution and it limits the ability of senators to filibuster related budget reconciliation bills. Both parties have used those limits on debate to enact significant policy changes as part of budget reconciliation measures, including President Obama’s health care reform and President Trump’s tax cuts.
In their recent calls for more exceptions to the filibuster, Senate Democrats are seeking something far different. Rather than secure a permanent change in Senate rules or a statutory carve-out (as with the recent debt limit increase) — both of which would require supermajority support to put in place — proponents want Democrats to “go nuclear” by ignoring Senate rules and precedent and insisting on ending a filibuster with a simple majority vote. Their “carve-out” is the nuclear option by another name.
The nuclear option, as it’s known, has a contentious history. Both parties have threatened to use it and then, in fact, used it to eliminate the filibustering of presidential nominees. Each party screamed bloody murder at the other’s transgressions, but each party then committed the same transgression to get its way.
Were the Senate to use the nuclear option for ordinary legislation, it would create a new playing field in the chamber that would likely come with unforeseen consequences. After all, what can pass the Senate by a simple majority can be repealed by a simple majority down the road as power shifts and old minorities become new majorities.
The debt ceiling carve-out of late last year is no analogy, nor does it provide a justification, for senators to deploy the nuclear option to make policy. It is instead an example of how the Senate can adapt its procedures to secure a policy outcome with broad support even when the political incentives lean in the other direction.
Michael Thorning is a director at the Bipartisan Policy Center where he analyzes U.S. political institutions. Thorning was previously an aide to U.S. Senators Jeff Bingaman and Tom Udall.