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The legislative filibuster, which creates a 60-vote threshold, only exists when it is convenient for Senate Republicans. Whenever the filibuster threatens to impede a Republican priority, it is ignored.
This week, Senate Republicans are seeking to pass President Trump's megabill under the budget reconciliation process, which allows for the expedited consideration of tax and spending measures. Crucially, a budget reconciliation bill is not subject to a filibuster. This allows Senate Republicans, who control 53 seats in the Senate, to pass the legislation with a simple majority.
But the budget reconciliation process, which is used by both parties, is also limited. One basic limitation is that all the provisions must make changes to spending or revenues. Another is that a budget reconciliation bill cannot increase the budget deficit outside of the 10-year budget window. Whether a legislative provision can be included in the budget reconciliation process is determined by the Senate Parliamentarian. While the Senate Parliamentarian is formally selected by the Senate Majority Leader, the position is non-partisan. The current Senate Parliamentarian, Elizabeth MacDonough, has served in the role since 2012, maintaining her position even as the party controlling the Senate changed.
That created a problem for Senate Republicans. The centerpiece of Trump's megabill is to make permanent the 2017 tax cuts for individuals, which overwhelmingly benefit the wealthy. This would violate budget reconciliation rules because extending the 2017 tax cuts would increase the budget deficit beyond the 10-year window, adding trillions to the national debt.
This is a matter that would normally be considered by MacDonough. And it is not hard to predict her decision. The permanent extension of the 2017 tax cuts cannot be included in the legislation because it violates budget reconciliation rules. Although the Senate Parliamentarian can be overruled by a majority vote, Majority Leader John Thune (R-SD) has pledged not to do so.
Republicans navigated this issue by refusing to meet with MacDonough to discuss the matter.
Instead, they took the position that Senate Budget Committee Chairman Lindsey Graham (R-SC) could unilaterally determine the budgetary impact of Trump's megabill. Graham then decided that the extension of Trump's tax cuts should be excluded from the calculations, even though Trump's tax cuts for individuals are set to expire at the end of the year.
Graham accomplished this by directing the Congressional Budget Office to calculate the budgetary impact of the bill, assuming that Trump's tax cuts would continue in perpetuity, even if the megabill did not become law. The technical term for this is changing the budget's "baseline." It is a complete fiction.
Nevertheless, on Monday, Senate Republicans voted to approve Graham's decision to manipulate the budget baseline. The vote was 53-47, with all Republicans voting in support of Graham's scheme and all Democrats opposed.
While the legislative maneuvering is somewhat complex, the bottom line is simple. Permanently extending Trump's 2017 individual tax cuts should be subject to the filibuster. But Republicans want to permanently extend Trump's 2017 individual tax cuts, and do not have the votes to overcome a filibuster. So, Republicans are ignoring the filibuster.
Senate Republicans ignore filibuster at behest of fossil fuel industry
This is not the first time in recent weeks that Senate Republicans have ignored the filibuster. On May 22, the Senate passed three resolutions revoking a set of waivers that the Environmental Protection Agency (EPA) had granted to California during the Biden administration, allowing the state to set strict regulations on vehicle emissions. These resolutions were passed by a simple majority and signed into law by Trump in mid-June, despite the fact that both the Government Accountability Office (GAO) and MacDonough advised that they were subject to the filibuster. Repeal of the waivers was a top priority of the fossil fuel industry.
Under the Congressional Review Act, lawmakers have the power to reject rules recently issued by federal agencies and prevent agencies from issuing any similar rules in the future with a simple majority vote, bypassing the Senate filibuster. For many years, the Senate has relied on the GAO to determine what is and is not a “rule” that falls under the purview of the Congressional Review Act. If the GAO decides that an action by a particular agency is not a rule, then the Senate must overcome the filibuster in order to nullify it.
In 2023, the GAO decided that the EPA’s waivers for California emissions restrictions are not “rules” that the Senate can easily overturn. Earlier this year, the GOA reiterated its stance, and MacDonough concurred. But Senate Republicans decided to disregard that decision.
Instead, they broke precedent and voted to overrule the GAO and MacDonough’s determination that the waivers are not rules and allow the resolutions revoking them to be passed by a simple majority.