Meet the Senate’s Fairweather Filibuster Fans

Senate Democrats Tried and Failed to Go Nuclear and Eliminate the Senate Filibuster. After Vowing to Try Again, They Now Cry “Nuclear” When Republicans Settle a Novel Procedural Question

THE QUESTION BEFORE THE SENATE HAD NOTHING TO DO WITH THE LEGISLATIVE FILIBUSTER AND EVERYTHING TO DO WITH AFFIRMING THE SENATE’S ARTICLE I AUTHORITY

“As a staunch supporter of the legislative filibuster who has voted consistently on this issue, which, again, is something my Democrat colleagues cannot say, let me be clear: This debate has nothing to do with the filibuster. The 60-vote threshold for legislation in the Senate remains untouched. This debate is about the novel issue that GAO created by improperly intervening to protect Biden-era rules. Our response is narrowly focused on how the Senate should handle this action as it applies to the CRA.” – Senate Majority Leader John Thune (R-S.D.)

At the request of Sens. Sheldon Whitehouse (D-R.I.), Alex Padilla (D-Calif.), and Adam Schiff (D-Calif.), the GAO made “observations” regarding the Environmental Protection Agency’s decision to “transmit three such waivers to Congress for potential review and disapproval under the Congressional Review Act (CRA).” (U.S. Government Accountability Office: Observations Regarding the Environmental Protection Agency's Submission of Notices of Decision on Clean Air Act Preemption Waivers as Rules Under the Congressional Review Act – 3/6/25; The Federalist: Op-ed: No, The Senate Shouldn’t Let Even More Unaccountable Bureaucrats Decide What The Law Says – 4/4/25)

“GAO’s authority is to — at the request of Congress — evaluate executive actions that were never sent and rule on whether they would be rules had they been sent. The role of GAO is not to second-guess transmitted rules.” (The Federalist: Op-ed: No, The Senate Shouldn’t Let Even More Unaccountable Bureaucrats Decide What The Law Says – 4/4/25)

The GAO itself acknowledged “this request presents a different situation” from GAO’s “regular practice.” (U.S. Government Accountability Office: Observations Regarding the Environmental Protection Agency's Submission of Notices of Decision on Clean Air Act Preemption Waivers as Rules Under the Congressional Review Act – 3/6/25)

In an April House Budget Committee hearing, Gene Dodaro, the head of GAO, admitted that there’s “no other example” of GAO telling “Congress that a rule submitted by the Executive Branch for congressional review is ineligible for review under the CRA.” (U.S. House Budget Committee: Budget Hearing – Government Accountability Office, Congressional Budget Office, and the United States Government Publishing Office – 3/9/25)

“Senate Majority Leader John Thune (R-S.D.) on Wednesday maneuvered to avoid a direct clash with the Senate parliamentarian over whether the Congressional Review Act can be used to overturn California’s electric vehicle (EV) mandate. Thune did so by setting up an elaborate series of procedural votes to allow the Senate to settle the controversial question.” (The Hill: Republicans avoid direct clash with Senate parliamentarian on California EV mandate – 5/21/25)

LEADER SCHUMER AND SENS. WHITEHOUSE, PADILLA, AND SCHIFF HAVE RAGED THIS WEEK ABOUT THE FUTURE OF THE SENATE AS AN INSTITUTION

“Senate Democrats are vowing that Republicans will face consequences over their decision to hold a vote to nix California’s emission standard waivers…” (Politico: Democrats vow payback in Senate rules fight – 5/20/25)

“Senate Democrats warn that defying GAO — which says the waivers don’t qualify as rules under the CRA — will set a precedent that expands the scope of the CRA and chips away at the legislative filibuster.” (Punchbowl News: News: Thune defends push to block California climate waivers – 5/21/25)

“Republicans are delusional if they think overruling the Parliamentarian on a legislative matter is anything but going nuclear… [I]f Senate Republicans move forward with this plan, they will break the Senate—and they should be eyes wide open about the consequences.” – Sen. Sheldon Whitehouse (D-R.I.)
“Sen. Alex Padilla (D-Calif.), the top [Democrat] on the Senate Rules [Committee], circulated a memo to Senate offices this week arguing that using the CRA for this purpose ‘would be the first ever successful use of the so-called nuclear option.’” (Punchbowl News’ Andrew Desiderio: post on X – 5/20/25)

“[H]ere we are, the week our colleagues may push to go nuclear and override the Parliamentarian, killing the filibuster, and going against their word to unwind 60 years of precedent and policy.” – Sen. Adam Schiff (D-Calif.)
“Today, Republicans are going nuclear, to appease the fossil fuel industry and at the same time erode away the institution they profess to care about.” – Senate Democrat Leader Chuck Schumer (D-N.Y.)

EACH OF THESE SENATORS HAS EITHER VOTED TO OR PUBLICLY COMMITTED TO ELIMINATE THE LEGISLATIVE FILIBUSTER

“Thune has already ruled out voting to overrule the parliamentarian when it comes to reconciliation. It has also exposed a fresh bit of hypocrisy. Just a few years ago, nearly every Democratic senator voted to scrap the legislative filibuster, even as they’re warning today that overruling the parliamentarian would mean going nuclear.” (Punchbowl News: News: Thune defends push to block California climate waivers – 5/21/25)

In January 2022, 48 Senate Democrats, including Leader Schumer and Sens. Padilla and Whitehouse, voted to eliminate the legislative filibuster – while every Senate Republican voted to keep it. (H.R. 5746: Roll Call Vote #10 – 1/19/22)

- - Padilla, of course, was among the more vocal supporters of ending the filibuster when Democrats were in power,” and even used his maiden floor speech in 2021 to call for its elimination, describing the filibuster as one of the Senate’s “outdated rules or traditions” keeping Democrats “from bold action and progress.” (Punchbowl News: Midday: Senate to vote on California climate policy waiver – 5/20/25; Sen. Padilla: Padilla Delivers Maiden Speech, Calls for Bold Action to Tackle Inequity and Restore the California Dream – 3/15/21)

- “I voted in favor of a rule change that would have allowed us to overcome the Republican blockade. I will continue to support whatever rule changes are necessary to move [Democrats’ federalization of elections bill].” – Sen. Sheldon Whitehouse (D-R.I.)
- “We must adapt. The Senate must evolve, like it has many times before.” – Senate Democrat Leader Chuck Schumer (D-N.Y.)
Since then, every newly-elected Senate Democrat, including Sen. Schiff, has advocated for eliminating the legislative filibuster. (NBC News: Democrats Gear Up To Overhaul The Senate Filibuster For Major Bills If They Win In 2024 – 5/17/24; The New York Times: Nobody Saw Andy Kim Coming. That’s What He Was Counting On – 4/29/24)

- “If we’re going to make significant reforms to protect a democracy, we’re going to have to get rid of the filibuster. And I would trade wild swings in policy because the majority in the Senate can actually get things passed over the democracy-defeating stalemate that we have with the filibuster.” – Sen. Adam Schiff (D-Calif.)
As recently as last summer, Leader Schumer “discussed plans for a scenario that just a month ago seemed awfully remote: a Democratic governing trifecta… Schumer was not shy about suggesting that the legislative filibuster may be at risk for at least some pieces of high-profile legislation.” (Politico’s Playbook: The late, late show – 8/20/24)

- “We came close last time, as you remember, we couldn’t change the rules, but I think there would be a consensus in my caucus to try and do that.” – Democrat Leader Chuck Schumer (D-N.Y.)
Other Senate Democrats are on the record advocating to eliminate the filibuster to pass their progressive agenda:
- “We cannot let Senate procedure stand in the way of important issues like voting rights.” – Sen. Maria Cantwell (D-Wash.)
- “The filibuster is a relic of the Jim Crow era that has been used to stifle progress for generations now. Abolish it.” – Sen. Ruben Gallego (D-Ariz.)
- “Now and over the next years, we just will get nowhere if we keep this filibuster in place… I do not believe an archaic rule should be used to allow us to put our heads in the sand…” – Sen. Amy Klobuchar (D-Minn.)
- “The filibuster must go. It's something that's rooted in a racist past, and it's used today as a way of blocking the progressive agenda…” – Sen. Ed Markey (D-Mass.)

DEMOCRATS, NOTABLY INCLUDING WHITEHOUSE AND SCHUMER, ALSO VOTED TO OVERTURN GUIDANCE FROM THE PARLIAMENTARIAN IN 2011

Democrats outright overruled the parliamentarian in 2011: “Mr. Reid took the first step toward going nuclear, a step many of his predecessors have contemplated but never done.” (The New York Times: The Senate’s Long Slide to Gridlock – 11/24/12)

“Unilaterally dismissing a Republican filibuster, he used a simple majority — 51 to 48 — to override the Senate parliamentarian. The parliamentarian had ruled that additional Republican amendments were in order on a China currency bill…” (The New York Times: The Senate’s Long Slide to Gridlock – 11/24/12)

“Senate Majority Leader Harry Reid (D-Nev.) triggered the so-called nuclear option–unilaterally changing Senate rules by a simple majority vote to stop the minority from forcing votes on uncomfortable amendments. It’s the same tactic the majority would use to undercut the minority’s ability to filibuster. And that’s why it’s called ‘nuclear’–it dramatically alters the balance of power between the majority and minority. It is not a step to be taken lightly.” (The Washington Post: Op-ed: Harry Reid’s Nuclear Blunder – 10/7/11)

Sixteen current Senate Democrats, including Sen. Whitehouse and Leader Schumer, voted to overrule the parliamentarian. (Shall the Decision of the Chair Stand as the Judgement of the Senate: Roll Call Vote #157 – 10/6/11)

On the night the Senate voted to overrule the parliamentarian in 2011, Leader Schumer justified his vote by blaming the filibuster – which Senate Democrats now happily use to block legislation – for many of the Senate’s problems at the time: “Let me say that it is not simply filling the tree and preventing amendments that caused this problem. It is routinely requiring 60 votes before the Senate can get a drink of water.” (Congressional Record: Vol. 157, No. 149 – 10/6/11)