If Democrats take the Senate, here's how the GOP can still stop their agenda

(Editor’s Note: This piece first appeared in the Washington Examiner on November 12, 2020.)

Democrats did not perform as well on Election Day as they had originally hoped. Joe Biden may have won the presidency, but Democrats lost ground in the House to the Republicans and failed to win a decisive majority in the Senate.

Republicans, on the other hand, performed better than many assumed they would. The presidential election was closer than expected, and the party flipped several seats in the House to narrow the Democratic majority. And while Republicans appear to be on track to retain their majority in the Senate, control of that chamber has yet to be determined.

Two special elections in Georgia will decide which party controls the Senate next year. As of now, the Senate will include at least 48 members of the Democratic caucus and 50 Republicans. Democrats will take control of an evenly divided Senate if they win both races, thanks to Kamala Harris’s tiebreaking vote. If Republicans win at least one of the races, they will retain their Senate majority in the 117th Congress.

Republicans are apprehensive about what will happen if Democrats prevail in the Peach State. They fear that unified control of Congress and the presidency will empower Democrats to enact progressive policies such as "Medicare for all" and the "Green New Deal." And they worry that Democrats will lock in their policy gains by expanding the size of the Supreme Court and packing it with justices sympathetic to their agenda.

Yet Republicans should not be despondent. The consequences of Democratic victories in Georgia are not as significant as they imagine. This is because the Senate’s rules enable Republican senators to slow down the Democrats’ legislative agenda and inject their own policy ideas into debates. And Republicans can use the rules over the next two years to thwart their most feared Democratic power grabs.

Unlike House Republicans (who do not have any more power despite picking up seats in the elections), Senate Republicans are not powerless if they lose in Georgia. They will have almost all of the same procedural tools to advance their agenda in the minority that they enjoyed in the majority. 

The Senate’s rules give them leverage to force Democrats to negotiate with them. For example, Senate Rule XXII requires three-fifths of the entire Senate (typically 60 senators) to vote to invoke cloture, or end debate, over senators’ objections. That means that Republicans can prevent Democratic priorities from becoming law by filibustering them.

Of course, Democrats can change the rules to eliminate the filibuster. That is, they can use the so-called nuclear option to change or ignore the rules over Republicans’ objections. Under the Constitution’s Rules and Expulsion Clause, 51 Democrats can therefore use the nuclear option to eliminate the Republicans’ ability to filibuster their agenda.

Both Democrats and Republicans have used the nuclear option in recent years to restrict senators’ ability to filibuster. In 2013, Democrats employed it to abolish the filibuster for all presidential nominations other than for the Supreme Court. Republicans employed the maneuver in 2017 to abolish the filibuster for Supreme Court nominations. And they used it again in 2019 to shorten the amount of debate time permitted under the rules after the Senate has invoked cloture on a nominee but before a final confirmation vote. Given this trend, it seems reasonable to expect Democrats to be able to go nuclear when Republicans try to filibuster their agenda.

But the ability of 51 Democrats to coalesce in support of going nuclear is contingent on how Republican senators respond to their threats to do so. This means that Republicans can use procedural tactics to make a subset of Democrats believe that the costs of going nuclear will outweigh the benefits they expect to gain from eliminating the filibuster. Republican senators can protect their ability to filibuster legislation if they credibly threaten to use these tactics whenever the Democrats try to go nuclear.

For example, Republicans may make it more costly for a Democratic-controlled Senate to process nominations and consider routine legislation by requiring a recorded vote to confirm nominees and pass bills. Doing so would increase the physical costs for Democrats to steamroll Republicans. It would also negatively impact other priorities on the majority’s legislative agenda due to the time required to conduct recorded votes. Specifically, Republicans may object to Democrats’ unanimous consent requests to confirm, or schedule a voice vote to confirm, presidential nominations. This tactic raises the costs for the Democrats to process routine nominations, especially at the beginning of the Biden presidency, by increasing the Senate’s workload in terms of time spent conducting recorded votes. 

Similarly, Republicans may object to Democrats’ unanimous consent requests to pass, or schedule a voice vote to pass, noncontroversial bills and resolutions. As with nominations, this tactic raises the costs for Democrats to process routine legislation by significantly increasing the Senate’s workload in terms of time spent conducting recorded votes. In contrast to nominations, where senators are supporting people nominated by the president for administration and judicial positions, Democrats are likely to have a more direct interest in passing simple resolutions and noncontroversial bills that benefit their constituencies directly.

Democrats cannot use the nuclear option to restrict Republicans’ ability to require a recorded vote to process routine business in the Senate. Article I, Section 5, Clause 3 of the Constitution states: “The Yeas and Nays [a recorded vote] of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal.” Consequently, a Republican effort to force recorded votes systematically on nominations and legislation would need at least 11 and not more than 20 members to be successful, depending on how many senators are present.

Republicans may also force Democrats to cast recorded votes on amendments that they fear will hurt them politically. Ordinarily, the majority leader fills the amendment tree to prevent senators from doing just that. But senators can get around this defense simply by ignoring the filled amendment tree and offering their amendment and appealing the subsequent ruling of the presiding officer that the amendment is not in order. This tactic forces Democrats to cast a recorded vote in relation to the amendment. Democrats could avoid the vote by filibustering the appeal. But in doing so, they would also be filibustering the underlying bill. Threatening to ignore a filled amendment tree by simply offering an amendment and appealing the ruling of the presiding officer that it is not in order also encourages Democrats to allow amendments more generally by giving Republicans leverage with which to negotiate for amendment opportunities.

These procedural tactics provide just two ways that Republican senators may deter an otherwise willing Democratic majority from going nuclear to eliminate the filibuster. Republicans can use them to persuade rank-and-file Democrats that it is not in their interest to support their party’s bid to go nuclear to pass an agenda that they may not fully support. If utilized strategically, forcing recorded votes on routine business and offering third-degree amendments increases the costs of going nuclear for Democrats relative to a continuation of the status quo or a negotiated settlement in which Republicans retain the filibuster without sacrificing their ability to obstruct in practice.

The next two years do not have to be a complete Republican rout in the event that Democrats prevail in Georgia and win majority control of the Senate. If that happens, Republican senators hold the key to what the future will bring.