Republicans Think They Have a Way to Blow Up the Filibuster Without Anyone Noticing
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.
Throughout Joe Biden's presidency, Republicans decried Democratic threats to reform the Senate filibuster. They fought tooth and nail to maintain the 60-vote threshold for legislation, working with centrists like Joe Manchin to thwart much of Biden's agenda. When they took over the chamber in 2024, these same Republicans promised to protect the filibuster. Now they are poised to deal it a shattering blow. Senate Republicans are quietly preparing to carve a huge new loophole into the filibuster at the behest of the fossil-fuel industry, dramatically expanding the chamber's ability to change the law with a simple majority. Their immediate target is a long-standing waiver that allows California to set strict vehicle-emissions standards. But the consequences of their actions would extend much further, circumventing the 60-vote threshold on a vast array of controversial issues and laying the groundwork to pass bigger chunks of Donald Trump's agenda by a majority vote.
The GOP's current crusade against the filibuster is the result of fierce lobbying from the fossil-fuel industry, especially the American Petroleum Institute , against California's stringent emissions requirements. The Clean Air Act expressly permits California to set its own, higher standards with approval from the Environmental Protection Agency. In January, at the end of Biden's presidency, the EPA granted the state “waivers” to impose a package of strict requirements designed to accelerate the adoption of electric vehicles. Weeks later, though, after Trump took over the EPA, the agency concocted a scheme to repeal those waivers—and bar California from obtaining waivers in the future. Now congressional Republicans seem ready to give the president a necessary assistance.
This plan remains on a bold escape from the filibuster. Trump's EPA and Senate Republicans want to repeal California's emissions standards under a law called the Congressional Review Act . This statute allows Congress to nullify rules that were recently issued by federal agencies, and to do so with a simple majority in each chamber, bypassing the filibuster in the Senate. Once the president signs a CRA repeal into law, agencies are forever barred from passing any regulation that is “substantially the same” as the one Congress nullified. Republicans claim that the California waivers qualify as an agency “rule” subject to repeal under the CRA. And they are racing to kill it through a mechanism that would, in theory, prevent the EPA from ever granting such a waiver again.
But Republicans have a problem: An EPA waiver is clearly not a rule and is therefore not subject to fast-track repeal under the CRA. In 2023 the Government Accountability Office decrees that EPA waivers to California are not “rules” and are exempt from the CRA's reach. The GAO also held that even if the waivers were rules, they would fall under one of the CRA's exceptions. So repealing California's waivers would require the usual 60 votes in the Senate to overcome the filibuster.
The Senate has long deferred to the GAO's determinations on this topic. But this time, GOP legislators have a different path: They plowed ahead with the repeal of California's emissions standards anyway. The House purported to nullify the waivers in late April . Now Senate Republicans are preparing to do the same via a mere majority vote. In March, the GAO reiterated that the waivers are not subject to CRA repeal. The Senate parliamentarian agreed , ruling that waivers are not “rules” under the CRA and are thus subject to the filibuster. He edict left the GOP with one last course of action: use the nuclear option to overrule the parliamentarian, bypass the filibuster, and kill the waivers without Democratic support.
Senate Republicans are now preparing to do just that. According to Axios , GOP Whip John Barrasso is corralling votes to “go nuclear,” with help from Senate Environment and Public Works Committee Chair Shelley Moore Capito. (A staunch ally of the petroleum industry, Capito engineered the failed effort to repeal the waivers through the CRA in 2023.) Former Majority Leader Mitch McConnell—a longtime defender of the filibuster who promised that it would remain “ very secure ” after the November election—is reportedly on board . John Thune, the current majority leader, has expressed openness to a vote, and moderates like Sen. Susan Collins have not closed the door on overruling the parliamentarian.
It is difficult to overstate the ramifications of such a move. The Senate would be radically expanding the CRA to encompass far more agency actions than the law was intended to cover. It would do so by asserting congressional authority to redefine every action taken by the executive branch as a “rule” that could be repealed through the CRA by a simple majority. A diverse coalition of interest groups has warned of some likely targets, including “energy infrastructure permit approvals, approvals of corporate mergers, or approvals of particular drugs.” Congress could use the CRA to kill an energy project cleared by the government. It could nix a corporate merger or attempt to overturn the denial of a merger. It could reverse the Food and Drug Administration's approval of a medical treatment—like mifepristone, the first drug in a medication abortion—or even a vaccine. And these repeals would bar the targeted agency from ever taking a “substantially” similar action again.
Congress can, in theory, override an agency at any time. But it must do so through legislation that's subject to the Senate filibuster. The CRA was crafted as a narrow exception to that process. Now Republicans are seeking to transform the law into a cheat code that Congress can exploit to enact startlingly broad changes to the law without reaching 60 votes in the Senate. Federal agencies issue an array of regulations and guidance every day. They adjudicate disputes on a dizzying variety of issues, from securities regulation to labor to immigration, agriculture, food safety, education, energy, the environment, and so much more. If the GOP prevails in the battle over California's waivers, it will empower Congress to overturn everything an agency does, on matters monumental and minute, and permanently prevent it from doing anything similar in the future—all by a simple majority.
And why stop there? Public Citizen's Amit Narang told me on Wednesday that the war on California's waivers may be just the beginning of Senate Republicans' assault on the filibuster. Narang, an expert on the CRA, believes that this skirmish has become a test case for future defiance of the parliamentarian. “This would lay the foundation for the filibuster to become meaningless,” he said. The pressure will be especially acute as Republicans attempt to pass their massive suite of tax cuts and Medicaid rollbacks through reconciliation by majority vote, a top priority for Trump. “We have no assurance whatsoever that they're going to just overrule the parliamentarian this one time and never again,” Narang told me.
The battle lines are already taking shape: Republicans are eager to insert a gargantuan, wholesale reversal of federal regulation into their reconciliation bill. The provision, known as the REINS Act, would terminate countless existing rules and make it exponentially more difficult for agencies to issue new ones. The parliamentarian is almost certain to reject the REINS Act's inclusion in the reconciliation bill, subjecting it to the filibuster instead. But this measure is another high priority for the fossil-fuel industry, which may well pressure Republicans to overrule the parliamentarian yet again to circumvent the filibuster.
And the consequences could spill over well beyond that. Charlie Ellsworth, partner at Pioneer Public Affairs and former budget staffer to Sen. Chuck Schumer, told me that, like Narang, he foresees more attacks on the filibuster if the CRA gambit succeeds. If the 60-vote threshold can be suspended to undercut California's climate laws, after all, why couldn't it be altered to enact the base's more urgent desires, including a nationwide abortion ban? “Republicans are teeing up a world where they're going to have to respond to the craziest passions from their base with no defense from the filibuster, only their own political calculations,” Ellsworth told me. “And I don't think that's a position they want to put themselves in.” It is, however, the position they are enthusiastically backing themselves into.
If Congress succeeds in killing California's waivers through the CRA, the state could challenge repeal in court as a violation of the statute's terms. But a separate provision of the law purports to bar judicial review; its meaning is not entirely clear, but some courts have interpreted it to prohibit courts from second-guessing Congress' actions under the CRA. California would have a messy fight on its hands. And even if it somehow prevailed at a hostile Supreme Court, the Senate would have already crossed the Rubicon, disarming the filibuster as a meaningful constraint on the majority's power in a way that could easily be repeated as litigation works a winding path to the high court.
Throughout the 2024 campaign, GOP senators shouted from the rooftops that they would preserve the filibuster if they won back the chamber. Thune, in fact, kicked off the current session by pledging , from the floor, that he would keep the 60-vote threshold in place. But Trump has long pressed Senate Republicans to blow up the filibuster to enact his sweeping agenda. Soon, the president may finally get his wish—not with a bang, but with an end run cloaked in procedural camouflage.
Sign up for Slate's evening newsletter.
