The filibuster is under the microscope again as Senate Republicans voted to overturn a federal regulation and nix California’s vehicle emissions standards, forcing the party to defend the maneuver in the face of Democratic claims they have set a new standard on the 60-vote rule.
Senate GOP members on Thursday voted to strike down federal waivers granted by the Biden administration that would have allowed the state to phase out gas-powered cars over the next decade via the Congressional Review Act (CRA).
They did so despite the Government Accountability Office (GAO) ruling that the waivers don’t qualify as rules under the CRA — which the Senate parliamentarian agreed with.
The move allowed Republicans to overturn the waivers with a simple majority, rather than the 60-vote threshold for most legislative items. In the process, it also renewed chatter about the filibuster. But Republicans insist they are not chipping away at the tradition, despite Democratic outcries.
“The Environmental Protection Agency submitted these rules as rules to Congress this year after being released by the Biden administration in its last days in office. That is a fact,” Senate Majority Whip John Barrasso (R-Wyo.) said on the floor Wednesday morning.
“Under the Congressional Review Act, that makes them subject to review. Period. End of story. The GAO has no veto power over the Senate. Not from the Congressional Review Act. Not under the Senate Rules. Not under Senate precedent,” Barrasso continued, accusing Democrats of using “scare tactics” in response to the GOP challenge of the GAO stance.
The battle has been brewing for months, dating back to the Environmental Protection Agency giving California the waivers just before former President Biden left office, leading the House to vote on the CRA earlier this month. Nearly three dozen Democrats voted with every Republican to pass it.
The Senate GOP, however, has been gearing up for this fight for weeks in the face of criticism that it is walking back on its oft-made vows to protect the three-fifths vote figure, which was a hallmark of Senate Majority Leader John Thune’s (R-S.D.) bid for leader.
Sen. Mitch McConnell (R-Ky.), the Republican leader throughout the filibuster fights in recent years, backed the effort too, telling GOP members that this was different from the Democratic attempt to scuttle it three years ago.
This helped assuage nervous members, leading to the 51-44 vote along party lines on Thursday.
“This is an uncomfortable place to be,” Sen. Thom Tillis (R-N.C.) conceded, before defending the push and saying that this is about the upper chamber reasserting its authority over the GAO rather than anything to do with the parliamentarian.
“If we don’t do this … then we have empowered the GAO more than anybody’s envisioned, and you can be damned sure that Democrats and Republicans are going to abuse it,” he said ahead of the vote.
Underscoring that uneasy feeling, Thune made a number of floor maneuvers Wednesday night that allowed the party to avoid a direct clash with the parliamentarian, Elizabeth MacDonough. Instead of overruling her, Thune brought the GOP-led electric vehicles resolution to the floor to pose a number of questions to the chamber.
This kept the ruling out of MacDonough’s hands and, in the process, boosted members who were uncomfortable with the prospect of a direct confrontation.
Leaders, though, insisted it was a limited and narrow precedent related only to the GAO and has nothing to do with the parliamentarian in this situation.
“The question before the body is, is the GAO going to decide this or not?” Thune told Punchbowl News. “For the most part, our members feel comfortable saying this is something Congress ought to be heard on.”
Democrats throughout have been accusing Republicans of abusing the filibuster despite their repeated attempts to weaken it in recent years.
“It’s going nuclear — plain and simple. It’s overruling the parliamentarian,” Senate Minority Leader Chuck Schumer (D-N.Y.) told reporters. “What goes around, comes around.”
Every sitting Senate Democrat has thrown their weight behind changing the rules in some way when they win back control, headlined by Schumer, who made a concerted push to change the rules in 2022 to enshrine voting rights.
It’s also not the first time Republicans have been accused of sidestepping the parliamentarian in this Congress alone. The party has indicated it believes Sen. Lindsey Graham (R-S.C.) as Budget Committee chair has the ability to rule on Republicans’ use of the current policy baseline to score the pending tax cut package, instead of the parliamentarian.
The filibuster has endured a tortured history throughout the past decade and a half, with both parties chipping away at it in various ways. Former Senate Majority Leader Harry Reid (D-Nev.) invoked the “nuclear” option, nixing the 60-vote threshold for most judicial and executive branch nominees after Republicans blocked scores of Democratic appellate court nominees.
McConnell told Democrats they would reap what they sewed — and followed suit four years later by eliminating the filibuster for Supreme Court nominees.
Most recently, Democrats attempted their voting rights carve-out in 2022, which would have further eroded the rule. That attempt failed, as then-Democratic Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.) declined to side with the conference.
Throughout the week, California Democratic members also made clear their anger over the vote, which they argue targets an individual state and its abilities to govern.
“Today, it is California and our ability to set our own air quality standards. But tomorrow, it can be your own state’s priorities made into a target by this vote to open the Pandora’s Box of the Congressional Review Act,” Sen. Adam Schiff (D-Calif.) said earlier last week.
Nevertheless, Republicans made clear they have little appetite to listen to what they view as pure hypocrisy and the minority party talking out of both sides of their mouth.
“They’re not the same thing. Everybody knows they’re not the same thing. [Democrats] are going to do whatever Democrats do with the filibuster when they take charge,” said Sen. Kevin Cramer (R-N.D.). “They’re all committed to eliminating the filibuster. … We’re not eliminating the filibuster.”
“I don’t worry about it,” he said about the GOP even giving off the appearance of nipping away at it. “You can’t be afraid of appearances and illusions in this business, or you’re too weak to be in this business.”
