It’s clear that a majority of the House supports creating a bipartisan commission to investigate the attack on the U.S. Capitol that occurred on Jan. 6. It passed a bill to do so earlier this month.
It’s clear that a majority of the public also supports such a commission. Polling has repeatedly demonstrated that, including a YouGov-Economist survey released this week.
But there will be no such commission. That vote in the Senate aimed at ending a Republican filibuster of the proposal to create a commission needed 60 votes. Instead, it only got 54 — 19 more votes than the opposition, but that doesn’t matter under the Senate’s filibuster rules. That there were three votes for ending the filibuster for every vote to maintain it doesn’t matter.
It could have been a 59-to-0 vote, and the commission would still have been blocked. In fact, 11 senators, nine of them Republicans, didn’t bother to vote at all. It didn’t matter.
You know all of this in the abstract, but it’s still worth walking through how arbitrary the filibuster rules are and how those rules affect legislative results.
After the twin special elections in Georgia earlier this year, the Senate is evenly split, with 50 Republicans and 50 members of the Democratic caucus, including independent senators from Vermont and Maine.
Passing legislation requires a simple majority. If a vote falls on party lines, that means a 50-50 vote, with Vice President Harris breaking ties. (She has already done so far more often than her predecessors.)
But votes in the Senate often aren’t focused on passing legislation, tossing that majority requirement in the garbage.
In February, there was a special vote also centered on the Jan. 6 riot: whether to convict former president Donald Trump after his impeachment for fomenting the violence on that day. Impeachment has a high bar for conviction, requiring a two-thirds margin in the Senate — 67 votes. Only 57 senators voted to convict Trump, so he skated, though only after a historically bipartisan rebuke.
The commission vote on Friday was aimed at ending a filibuster that blocked the legislation from moving forward. Cloture requires a lower standard of 60 votes — three-fifths of senators — but, as mentioned, supporters of the commission only got 54.
This 60-vote margin only emerged in 1975. Before then, you needed two-thirds of the vote from senators who were present in the room. Were every senator there, that’s the same 67-vote margin as required in the impeachment vote. But on Friday, that would have meant two-thirds of the 89 senators voting … which, coincidentally, meant needing 60 votes.
But there’s nothing set in stone about these rules. It’s not like they’re in the Constitution. Instead, the Senate made them up and can change them as they see fit. So if, for example, the standard set in 1975 had been 60 percent of those present, the cloture vote would have passed and consideration of a commission could have moved forward to a final vote.
But, of course, that’s not the standard. If the vote had been as shown below, it would have been no closer to passage under the current rules.
Of the 11 senators who didn’t vote on Friday, three — the two Democrats and Sen. Patrick J. Toomey (R-Pa.) — had expressed support for creating the commission. Had all of the absent senators shown up and cast ballots, the result would have been 57-to-43 — equal to the impeachment vote but still insufficient to end the filibuster.
The below-the-surface politics here are interesting. Sen. Richard Burr (R-N.C.) voted to impeach Trump but had expressed opposition to the commission. (He missed the vote.) Sen. Kyrsten Sinema (D-Ariz.) supported the commission, but also missed the vote. Sen. Rob Portman (R-Ohio) voted to acquit Trump but supported the commission.
We will hear a lot over the next few hours or days about how the filibuster preserves the rights of less populous states. This is the long-standing argument on both the filibuster and the electoral college: Each allows for states with fewer residents to have skin in the game.
The vote on the Jan. 6 commission makes clear what that means in practice. There’s nothing small-state-specific to opposition to such a commission except that those states are often heavily Republican, and Republicans, worried about the obvious connection between Trump and the riot, aren’t excited about spending a lot of time adjudicating the issue. It’s a great example of how the claim that “small states need to have a voice” is often just a proxy for “we prefer that the national Republican Party enjoy the weighting advantage that accompanies being popular in those small states.”
That’s how the rules work, given how they were rewritten in 1975. And it seems clear that those rules aren’t likely to change soon.