Over the past week, some pundits have warmed to a 55-vote threshold for cloture in the U.S. Senate (compared with the current requirement of 60 votes). Writing for the Washington Post, Greg Sargent brought in a former Robert Byrd aide to outline the benefits of such a change, and, this past weekend, New York Times columnist (and longtime National Review contributor) Ross Douthat endorsed the proposal.
Douthat offers a succinct and thoughtful overview of the case for shifting to 55 votes for cloture:
Then more broadly, beyond just the Senate rules, the idea of 55 percent as a threshold for dramatic reforms sets a plausible target for both parties to hit, as they try to break out of gridlock and create more durable majorities.
Under polarized conditions the days of 60-percent landslides aren’t coming back, nor (save under emergency conditions) are the days of sweeping, 70-Senate-votes bipartisanship. But expecting our political parties to legislate like New Deal or Great Society Democrats with margins like John F. Kennedy in 1960 doesn’t seem like the wisest idea either.
Maybe there’s a middle ground. In a country so large, diverse and deeply divided, a system that encourages the two parties to aim for 55 percent instead of 51 percent, whether in the Senate or on the presidential hustings, might work against polarization and toward consensus without expecting our divisions to magically disappear.
Douthat sees a new 55-vote cloture requirement as a way of placing limits on the rule of 51 percent while also creating a narrower threshold for consensus so that ambitious pieces of legislation can be passed.
Whatever the merits of the case for lowering the threshold for cloture to 55 votes, an essential question for any proposal to reform the filibuster is how this change would happen: through the regular order of the Senate (which requires two-thirds of voting senators to support cloture on a rules change) or through the nuclear option (which ignores those rules).
From the perspective of institutional credibility, using the nuclear option to change the threshold for cloture — whether to 55 votes or a bare majority — is itself a destructive act. When Robert Byrd supported reducing cloture from two-thirds of senators voting to three-fifths of the whole Senate in the Seventies, he did so through regular order, not through the nuclear option.
Furthermore, using the nuclear option to reduce cloture to 55 votes almost certainly starts the clock for the elimination of the filibuster entirely. If 51 votes can unilaterally reduce the threshold for cloture, why, then, should a majority allow any limits on its power? No doubt aware of the institutional consequences of any use of the nuclear option, Joe Manchin has insisted that he will not use the nuclear option to change the Senate’s rules on the filibuster.
Whether Republicans should work with Democrats through regular order to support reducing cloture to 55 votes is another question, though there are reasons to be doubtful of that course of action, too. At the moment, it seems unlikely that 17 or so Republicans would sign on to an effort to weaken the filibuster.
The current threshold for cloture encourages the Senate to focus on areas in which there is broader consensus. As recent as George W. Bush’s time in office, presidents could regularly assemble bipartisan majorities to pass big-ticket items. The one-two punch of the Iraq War and the financial crisis arguably helped fracture American politics, and politicians post-2008 often leaned into polarization. Yet, even in a polarized time, the Senate remains capable of getting to 60+ majorities. With 68 votes, it passed a massive industrial-policy bill — the U.S. Innovation and Competition Act — just last week. The First Step Act passed the Senate with 87 votes in 2018, and a transformative revision of the nation’s education laws passed the Senate with 85 votes in 2015.
Tellingly, many of the significant bipartisan bills passed by the Senate in recent years have passed through regular order, which encourages buy-in from a range of stakeholders. Efforts to circumvent the normal give-and-take of the Senate — by the majority leader “filling the tree” to block amendments, for instance — and impose parliamentary discipline on the Senate have helped stiffen the institution. It remains unclear that the norms of parliamentary polarization fit the political infrastructure established by the U.S. Constitution. Especially in a time of narrow and quicksilver political majorities, recovering the Senate’s institutional muscle-memory grows even more important.