With President Donald Trump set to announce his Supreme Court nominee on Tuesday, the filibuster will become a front-and-center issue. Senate Minority Leader Charles Schumer (D-NY) and the Democrats have signaled that they will filibuster Trump’s nominee (although some Democrats are backing off from this threat), and Sen. Ted Cruz (R-TX) has said that the Senate could use the nuclear option to quash a filibuster to confirm Trump’s nominee.
Here are seven things you need to know about the Senate’s filibuster rules.
1. The Senate paved the way for the filibuster rule by ending the Previous Question Motion rule in 1806. The Previous Question Motion rule required only a majority vote to end debate on the floor, and it was scrapped in the Senate owing to Vice President Aaron Burr’s advice, which eventually led to the filibuster’s use of to stall legislation by talking and talking. The House of Representatives, on the other hand, has maintained the Previous Question Motion rule.
2. The first Senate filibuster didn’t occur until 1841. It was “over the issue of the firing of Senate printers, and lasted six days,” according to Time.
3. The cloture rule to cut off debate was established in 1917 due to President Woodrow Wilson’s encouragement. Known at the time as Rule 22, the rule established a two-thirds threshold to end debate, and hence a filibuster. The Senate’s website explains the history of the two-thirds cloture threshold:
The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a 60 day filibuster against the Civil Right Act of 1964.
4. The cloture threshold was lowered from 67 votes to 60 votes in 1975. Senate rules still required a two-thirds majority in order to be modified. The rule change was intended to limit the number of filibusters, but instead the opposite occurred, according to Politico:
In the 1960s, despite intense battles over civil rights legislation, there were no more than seven cloture votes in any Senate session. In contrast, in the first 10 years of the 21st century, there were at least 49 cloture votes in each session.
The 110th Congress, in 2007-08, broke the record for Senate cloture votes, totaling 112 by the end of 2008. Sixty-one of them proved successful. The ensuing Congress, in 2009-10, had 91 cloture votes, with 63 ending debate.
5. What exactly is the process to invoke cloture? According to a Congressional Research Service report, a cloture motion can only be filed once 16 senators sign a petition to do so. At this point, a senator can interrupt the filibustering senator to file the motion. The motion then comes up for a vote in the first hour of the second Senate work day after it has been filed, where it then comes up for a roll call vote.
6. In 2013, Senate Majority Leader Harry Reid (D-NV) changed the cloture rule so only a majority rule would be needed to end cloture on presidential nominees. To do so, Reid invoked the nuclear option so the rule change would only require a majority vote. At the time, Reid’s use of the nuclear option was so Obama could get three of his appointments to the D.C. Circuit of Appeals confirmed.
There was only one type of presidential nominee exempted from the rules change: Supreme Court nominees.
7. Under the precedent Reid set, Senate Majority Leader Mitch McConnell could also use the nuclear option to ensure that Trump’s Supreme Court nominee gets confirmed. The big question, of course, is will McConnell do so? On January 23, McConnell seemed to all but throw cold water on the nuclear option, stating: “It takes 67 votes to change the rules in the Senate. We saw one rather conspicuous exception to that a few years ago but no we don’t have any current plans on the rules.”
Perhaps McConnell’s stance will change if the Senate Democrats follow through on their threat to filibuster Trump’s Supreme Court nominee. It will be up to Trump and the grassroots to ensure that McConnell will use every tool at his disposal to confirm Trump’s nominee.
Follow Aaron Bandler on Twitter @bandlersbanter.