With filibuster, the Senate has non-nuclear options

The debate over the Senate filibuster is often framed as an all-or-nothing proposition: Either the Senate retains its current requirement that the vote of 60 senators be required to close debate, or the body moves to a simple majority rule. Abandonment of the 60-vote rule is routinely denominated the “nuclear option,” suggesting cataclysmic consequences of such a change.

But the filibuster has been modified on numerous occasions over the years to reflect changing political realities and shifting popular sentiments. One could easily imagine adjustments to current Senate procedures that would be more attentive to voter preferences but recognize the virtue of ensuring that legislation has substantial and sustainable public support before closing off debate.

For example, the Senate could adopt a new path to cloture based on the vote of senators representing at least 60 percent of the nation’s population, as opposed to the current requirement of 60 percent of senators. If each senator were allocated one-half of the population of his or her home state, the 50 Democratic senators and those who caucus with them would possess votes presenting slightly over 56 percent of the population. That would not be enough to reach a 60 percent threshold, so some degree of bipartisan support would still be needed to succeed with this new cloture procedure.  

But many new voting coalitions would become possible to move legislation to the Senate floor.  Obtaining support from a Republican senator from a populous state such as Pennsylvania (allocated 1.94 percent of the national population) or Ohio (1.77 percent) or Florida (3.32 percent) would get Democrats within striking distance of the 60 percent threshold. In contrast, under current Senate rules, 41 Republican senators representing less than 23 percent of the national population can now guarantee that no substantive legislation outside of reconciliation bills will reach a Senate vote — meaning that cloture votes can now require support from senators representing more than 77 percent of the population to have a chance at passage. 

Another approach to filibuster adjustment would be to allow for cloture based on substantial popular support for the legislation question. For example, if there were clear evidence that a substantial percentage — say, again, 60 percent — of eligible voters were demonstrated to have been supportive of a legislative proposal over some sustained period of time — say, three years — Senate rules could provide that a simple majority of senators could force cloture. This requirement would satisfy any concern that the legislation in question should possess substantial national support, the underlying justification of any filibuster requirement. 

While it might seem odd to tie procedural issues to empirical propositions such as the strength of voter support, many points of order in Congress currently turn on scoring calculations of the Congressional Budget Office (CBO) regarding estimated revenues and outlays and certain other economic projections. One could easily imagine the CBO expanding its expertise to make determinations with respect to popular support of legislative programs with sufficiently high confidence intervals. A cloture rule of this sort could bring before the full Senate highly popular legislative initiatives such as gun control, minimum wage increases and immigration reform, for which it has proven difficult to make legislative progress, despite persistently strong and, in some cases, bipartisan popular support. 

No doubt some still would prefer to have a complete elimination of the Senate filibuster rule given the paralysis that has plagued recent Congresses. But if one wants to honor the logic of the filibuster, there are other ways to adjust cloture procedures in the Senate. Many are more consistent with popular sovereignty than current filibuster requirements. What’s more, these incremental adjustments would avoid the dangers of constantly changing legislative enactments that might arise were the Senate to allow a simple majority of senators to move bills to the floor.

Howell E. Jackson is the James S. Reid Jr. Professor of Law at Harvard Law School. He has served as a consultant to the Treasury Department, United Nations Development Program and the International Monetary Fund.