It’s a tale as old as time—or, rather, roughly as old as a seventh grader: The party controlling the Senate takes action to weaken the filibuster, and the minority party warns of a tyrannical majoritarian upper chamber that will undermine its perhaps outdated reputation as the “cooling saucer” of Congress.
The latest salvo in this long-running conflict occurred on Wednesday, when Senate Republicans pressed forward with a simple-majority vote to overturn California’s electric vehicle mandate, despite an assessment by the nonpartisan Government Accountability Office, or GAO, that it should be subject to the 60-vote filibuster threshold. Senate Parliamentarian Elizabeth MacDonough, who advises the upper chamber on proper procedure, has sided with the GAO on this issue, and Democrats warn that moving forward would set a dangerous precedent in weakening the filibuster.
“No, this isn’t the same as killing the filibuster. This actually goes way, way beyond that. First, they are doing more than going nuclear on the parliamentarian. They are going nuclear on the Congressional Review Act itself,” argued Senator Alex Padilla of California in a speech ahead of the vote.
Let’s rewind a bit—about 30 years ago, to be precise. Since 1996, the Congressional Review Act, or CRA, has allowed Congress to overturn executive agency rules under expedited procedures, meaning that it is not subject to the filibuster, but instead can be vacated with a simple majority threshold. OK, now fast-forward: In 2024, the Biden administration granted California a waiver to implement an electric vehicle mandate. The GAO assessed that this waiver did not count as an executive agency rule, meaning that it could not be subject to the CRA.
In February, the Trump administration sent the rule to Congress, saying that it was a rule and subject to the CRA. Although the GAO reiterated that the waivers did not count as a rule, Senate Republicans pressed forward with a plan to use the CRA to vacate the mandate anyway. In an effort to avoid claims that Republicans were actively ignoring the parliamentarian’s advice, Senate Majority John Thune set up a series of complex points of order in the service of overcoming her ruling that agency waivers are not rules that can be overturned by the CRA.
“What I didn’t want to do was to vote to overturn the parliamentarian, and with help from a lot of experts the leader came up with an approach that avoids that outcome,” GOP Senator Susan Collins told reporters ahead of the vote. Thune also insisted that the move “is not about destroying Senate procedure or any other hysterical claim the Democrats are making.”
Democrats, however, beg to differ. “On this vote, the Republicans will be breaking their commitment and will be going nuclear, and however they try to disguise their actions, this is nuclear, no ands, ifs or buts,” Senate Minority Leader Chuck Schumer said. “They will not like it the next time they are in the minority.”
Molly Reynolds, a senior fellow at the Brookings Institution who wrote Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate, said that while Republicans’ actions amount to simply adding yet another new exception to a rule, it is another “step in the Senate’s slow march to simple majority rule.”
“Every time the Senate chips away at the filibuster, every time it expands a set of things that it can do with a simple majority threshold, we should take note of that,” said Reynolds.
The process of slowly undermining the 60-vote threshold for advancing most legislation in the Senate has been underway since Democrats used the “nuclear option” to eliminate the filibuster for certain judicial nominations in 2013, and both parties have further undermined the precedent in the name of advancing their respective goals. Matthew Glassman, a senior fellow at the Government Affairs Institute at Georgetown University, noted that given the specificity of the CRA, there is a “very narrow set of times this will come into play,” but added that “this is a demarcation line.”
“I wouldn’t call this the crumbling of the dam on the filibuster on normal legislation, but it’s one more exception to the rule,” Glassman said.
The debate over the extent of the CRA comes as Republicans attempt to pass their massive “big, beautiful bill” that would extend tax breaks and slash billions in federal spending—particularly targeting benefits for low-income Americans—while adding trillions of dollars to the national debt. The measure is being considered through a process known as a budget reconciliation—another method of avoiding the filibuster. GOP senators are mulling ignoring the advice of the parliamentarian on what is permitted to be included in the bill under reconciliation rules.
“We are having this conversation about what the Senate can do with a simple majority threshold, how it treats the advice of the parliamentarian in practice, if not in literal implementation, in the midst of a broader conversation about whether they’re going to listen to the parliamentarian in the reconciliation context,” Reynolds said. “We can’t isolate that from this broader debate over, are they going to keep deferring to the parliamentarian?”
If Senate Republicans do decide to ignore the advice of MacDonough when approving the reconciliation bill, it would just be yet another line in the sand that senators are willing to cross in carving out greater exceptions to allow the passage of their priorities. Eventually, said Glassman, the will of the majority will win out over a desire to keep Senate precedent.
“I think the filibuster is on borrowed time. I think a decade from now it’ll be gone,” said Glassman. “It takes the right orientation of politics to get you to that point, but we’re closing in on it. And things like this just open up people’s eyes that the procedures are relatively simple, and it’s not hard to go down there and do it.”
