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Some Senators Want to 'Go Nuclear' to Pass Democratic Priorities

The Wall Street Journal. logo The Wall Street Journal. 7/3/2020 Kristina Peterson, Lindsay Wise
a man and a woman standing next to a car © Stefani Reynolds/Bloomberg News

WASHINGTON—Democrats’ improved prospects for winning both chambers of Congress and the White House in November have reignited calls within the party to end the Senate filibuster, lowering the bar for passing all legislation to a simple majority.

Lawmakers of both parties have resisted throwing out the current three-fifths threshold—60 votes when the Senate has no vacancies—even as they changed the rules for federal judicial and executive-branch nominees, and most recently Supreme Court picks, to require just 51 votes when all senators are present. But a growing number of Democrats see eliminating the filibuster as the only way to pass legislation on health care, policing and other priorities if they win the Senate, even if it means they will have less power when they are in the minority again.

“I decided the only way I could justify spending more years of my life in this broken institution was to do everything I possibly can to restore it to being a functioning legislative body,” Sen. Jeff Merkley (D., Ore.) said in an interview Wednesday, adding that he had wrestled with whether to run for re-election this year.

Mr. Merkley and Sen. Elizabeth Warren (D., Mass.) are leading the push among Democrats to change the chamber’s rules if the party wins the Senate and presidency this fall. During her presidential run, Ms. Warren highlighted gun control as one issue Democrats could pass if they eliminated the filibuster.

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Mr. Merkley said he hoped to pair changes to the legislative filibuster, which would benefit the party in control, with changes to make it easier for those in the minority to offer amendments. Senate Minority Leader Chuck Schumer (D., N.Y.) has said nothing is off the table, but noted that Democrats’ first step is winning back the Senate.

Democrats need to add a net three seats to gain control of the Senate if they also win the White House and their vice president can cast a tiebreaking vote. But even with a very strong showing this fall, they are unlikely to hold 60 seats next year. Under the chamber’s current rules, that means they would need some GOP support to clear procedural hurdles on most legislation. To eliminate the 60-vote threshold, however, they would need just 51 votes, if all senators are present.

One party moving unilaterally to change the rules is so contentious, it is referred to as “the nuclear option.” In recent years, lawmakers from both parties have said eliminating the legislative filibuster would diminish the central difference between the Senate, where it traditionally forced bipartisan compromise, and the House, where legislation can be passed by a simple majority.

“You change the character of the Senate and the Congress forever if you do that,” said Sen. Roy Blunt (R., Mo.).

Former Vice President Joe Biden, who spent 36 years in the Senate and has emphasized the possibility of bipartisan cooperation, has said he opposes eliminating the rule.

If Democrats win, after four years under President Trump and a GOP-led Senate, they will be under pressure from voters to make swift changes on issues including the public health crisis and economic recovery from the coronavirus pandemic, a policing overhaul aimed at ending racial inequality and climate change, among other things.

“People are realizing that speed is going to be important and if voters put Democrats in power, they’re going to expect results,” said former Senate Democratic aide Eli Zupnick. “It will not inspire confidence if they spend months allowing Mitch McConnell to block everything.”

Mr. McConnell, the Senate majority leader, said Tuesday that he has resisted the repeated urging of Mr. Trump to lower the threshold to pass GOP legislation, and he warned Democrats against taking a step they might regret when they find themselves next in the minority.

“The important thing for our Democratic friends to remember is that you may not be in total control in the future and any time you start fiddling around with the rules of the Senate, I think you always need to put yourself in the other fellow’s shoes and just imagine what might happen when the winds shift,” he said.

One bellwether in the shifting discussion is centrist Sen. Chris Coons (D., Del.). In 2017, Mr. Coons and Sen. Susan Collins (R., Maine) led a bipartisan group of 61 senators dedicated to retaining the 60-vote threshold for legislation. Now, Mr. Coons said he would prefer to keep that threshold in place but is no longer ruling out its elimination.

“I am going to work very hard to find a path forward that does not require repealing the filibuster,” Mr. Coons said Wednesday, adding that he was already speaking with Republicans about how they could advance legislation, regardless of who the next president is. He, however, said, “I’m not going to sit here for four years and watch as we get nothing big done with a Democrat in the White House.”

One way both parties have got around the 60-vote threshold is to tap a fast-track process known as reconciliation, which allows measures tied to the budget to pass the Senate with just a simple majority. Senate Republicans passed their tax overhaul in December 2017 using reconciliation. They also tried to repeal the 2010 health-care overhaul using the same process, but came up short—highlighting the challenges of even a simple majority on contentious bills.

Not all legislation can be considered using the reconciliation process. In 1985, Congress created the Byrd Rule at the behest of the late Democratic Sen. Robert Byrd of West Virginia, who was concerned that the process was being stretched too far. Under the rule, reconciliation bills must be primarily fiscal, stay within a set budget and avoid deficits beyond the budget window. That could make it hard to pass an expansion of background checks on gun sales, for example, Democrats said.

Some Democrats remain committed to retaining the 60-vote threshold, viewing it as an important bulwark against the majority party ramming through partisan legislation.

“It’s going to remain,” said Sen. Dianne Feinstein (D., Calif.) “It’s one piece of equipment that exists if you need it.”

Write to Kristina Peterson at kristina.peterson@wsj.com and Lindsay Wise at lindsay.wise@wsj.com

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