U.S. Sens. Maggie Hassan and Jeanne Shaheen spent President Donald Trump’s first term supporting the Senate’s filibuster rule. In 2017, they signed a letter to Senate leadership urging them to keep the rule in place requiring legislation to get 60 votes in order to end debate and move to a vote.
Then, when President Joe Biden was in the White House and Democrats held a slim Senate majority, they both flip-flopped, voting to kill the filibuster in 2022. Their goal was to pass a federal election law overriding voter ID mandates and restrictions on early, mail-in voting in states like New Hampshire.
Now, with the Senate considering a vote to kill California’s ban on the sale of gasoline-powered cars by 2035, Hassan and Shaheen have flip-flopped on their flip-flop. The two joined 18 fellow Democrats in a letter to GOP leadership warning that the Senate’s vote to kill the ban could end the filibuster. And that, they now suggest, would be a bad thing.
The immediate issue is a Biden administration waiver granted under the Clean Air Act allowing California to impose emissions mandates beyond those required by the federal government. Under that waiver, California got an EPA ruling allowing the state to impose its ban on the sale of all gasoline-powered cars by 2023. About a dozen other states, including Massachusetts, use the California standard and have pledged to ban gas-powered cars by 2035, too.
A majority of the U.S. Senate wants to reverse that EPA rule. They want to pass a resolution, already passed by the U.S. House, to undo the Biden administration’s approval of the California rule using the Congressional Review Act (CRA).
The CRA allows Congress to nullify a regulation with a simple majority in both the House and Senate and the president’s signature. When the House voted to kill the EPA rule allowing the ban on gas-powered cars, 35 Democrats crossed the aisle and supported the GOP effort.
There is a solid majority in the U.S. Senate to do the same. But the Senate parliamentarian says the senators are trying to undo a waiver issued by the Biden administration, not overturn a rule made by the EPA. Therefore, the CRA doesn’t apply, and the Senate would need 60 votes to kill the car ban.
With 53 GOP senators, it would only take seven Democrats to get to 60 votes. It currently appears the votes aren’t there, however, and Republican leadership is considering ignoring the parliamentarian’s ruling and using the CRA to kill the ban, anyway.
And that, according to Senate Democrats like Hassan and Shaheen, would be the same as killing the filibuster.
“Now, we understand that some may be considering overruling the parliamentarian’s decision. While that might be more expedient than agency rulemaking or considering legislation under the Senate’s normal rules, such an action would be a procedural nuclear option—a dramatic break from Senate precedent with profound institutional consequences,” the senators wrote.
“Put bluntly, there is no cabining a decision to overrule the parliamentarian.”
That is a reversal of the Hassan-Shaheen stance in 2022, when they urged the Senate to blow up the rules to pass legislation on voting and abortion. Which itself was a reversal of their 2017 position that the filibuster must be preserved.
Neither Hassan nor Shaheen has responded to multiple requests for comment on their filibuster stance from NHJournal.
Rep. Chris Pappas, the frontrunner to replace Shaheen in the U.S. Senate, recently expressed his support for the filibuster, calling it “an important tool to be able to stop bad policy from being able to go through Congress.”
However, earlier this month, Pappas voted against this same CRA resolution in the House, along with his fellow Granite Stater Rep. Maggie Goodlander (D-N.H.)
Polls show Americans overwhelmingly oppose a ban on gas-powered cars. And despite generous taxpayer subsidies, sales of electric vehicles were down in April, even as overall car sales soared.
The Senate may vote on the CRA this week.
