There’s a wealth of analysis in John McCormack’s story about what could happen if Democrats do hold the House and pick up at least two Senate seats during the 2022 midterms. Netting two Senate seats would allow Democrats to nuke the legislative filibuster and permanently remove one of the moderating guardrails of American politics. His story already discusses how destabilizing a post-nuclear Senate could be, but I think it might be worth underlining the disruptive potential of nuking the Senate.
At the heart of the nuclear option is not just the elimination of the filibuster but the direct attack on the Senate as a body bound by rules. The rules of the Senate have traditionally given a wide range of protections to individual senators and made the body much more resistant to top-down partisan control. Senate rules say that a two-thirds vote is required to change the rules of the Senate, but the nuclear option is the act of a narrow majority to ignore those rules. It opens the door to much more partisan discipline, pushing the Senate more in the direction of the House.
Nuking the filibuster for nominations helped further polarize the nominations process, and further attacks on regular order would likely only worsen that polarization. Bound by the filibuster, the current 50-50 Senate has been a hub of bipartisan deal-making; the incentive for such bipartisan cooperation drops precipitously in a post-nuclear Senate.
In allowing a party that controls Congress by only the slimmest margins to have absolute control, nuking the filibuster would allow for wild swings in policy, as McCormack’s story notes. It could also dramatically weaken federalism. Right now, the passage of most federal legislation requires relatively broad consensus, which means that states have more of an opportunity to set policy in areas of national controversy. Rule by narrow congressional majority could threaten the project of states as policy workshops.
Nuking the filibuster could also have broader constitutional effects by dramatically affecting the balance of power in the federal government. A post-nuclear Congress could decide to pack the Supreme Court on a narrow, party-line vote. Civil-service protections could also be revised by only the slimmest of partisan majorities, with significant implications for the federal bureaucracy.
Other than Joe Manchin and Kyrsten Sinema, every incumbent Democratic senator is on board with the nuclear option. In January, Michael Bennet, Catherine Cortez Masto, Maggie Hassan, Mark Kelly, and Raphael Warnock (all up for reelection in November) all voted to exercise the nuclear option on the legislative filibuster. Senate challengers Mandela Barnes, Val Demmings, John Fetterman, and Tim Ryan have also said that the filibuster should be scrapped. In Utah, independent Senate candidate Evan McMulllin (who is supported by the state’s Democratic Party) says at the moment that he only supports certain reforms to the filibuster — but his campaign did not respond to a request for comment about whether McMullin would support the nuclear option or not.
In early 2021, proponents of the nuclear option argued that the Senate was permanently deadlocked: Legislative cooperation was a forgotten relic of the past. Contrary to that argument, the Senate has passed one compromise bill after another during the 117th Congress. If the past two years have shredded one argument against blowing up current legislative institutions, they have also shown the dangers of escalating political conflict. In a post-nuclear Senate, the Overton window for policy and political conflict is considerably expanded. For all the talk about the crisis of “democratic norms,” intensifying political conflict threatens the stability of democratic life.