Zach Wendling
LINCOLN — Arguments for whether Nebraska lawmakers should change the threshold needed to end debate and shut off a filibuster, possibly aiding conservative priorities, appear more centered on rural and urban interests than partisan goals.
This year, the Nebraska Republican Party again identified lowering the filibuster threshold — set currently at two-thirds of the 49-member Legislature, or at least 33 votes — as a top priority for the legislative session.
However, some conservative lawmakers urge caution about a goal they say could hurt rural interests or backfire. Census data has shown urban and suburban eastern Nebraska growing faster than many more rural counties concentrated to the west.
“Minority rights can run the gamut of who they represent. … That kind of minority might protect us at some point, and we’ve got to defend that,” said State Sen. Jana Hughes of Seward.
“It gets frustrating at times, but you got to remember that who’s in the minority depends upon the topic,” said State Sen. Mike Jacobson of North Platte.
‘Integrity of the Unicameral’
The Legislature is officially nonpartisan, which means lawmakers do not have formal leadership structures built around party affiliation, such as majority or minority leaders. However, all but State Sen. Megan Hunt of Omaha, a nonpartisan progressive, is a registered Republican or Democrat.
Republicans have secured 33 of the 49 seats, meaning if all senators vote in lock-step, partisans could have enough to pass conservative priorities.
However, Eric Underwood, chair of the NEGOP, has called it “worrisome and sad” that some conservatives might deviate from the pack.
In a Jan. 7 email to supporters before the legislative session began, Underwood identified some GOP priorities possibly at risk if the filibuster rules didn’t change, a list that included bills to define “male” and “female” in state law and shift how the state awards presidential electors.
“The integrity of the Unicameral is in the effectiveness to purposefully and meaningfully benefit Nebraskans, NOT a select few special interests,” Underwood wrote.
State Sens. Kathleen Kauth of Omaha and Loren Lippincott of Central City proposed the filibuster rules changes to the six-member Rules Committee, chaired by Lippincott.
Kauth’s proposal would offer a sliding scale to the filibuster shut-off valve, known as “cloture.” It would stay at two-thirds of the 49 senators but be based only on two-thirds of those who are present and voting “yea” or “nay.”
Senators who attend but do not vote, those “present, not voting,” would be treated as if they were absent, lowering the number of votes needed to invoke cloture or forcing senators to pick a side.
Lippincott’s rule change would drop the hurdle to clear on cloture motions to 30 votes, or three-fifths, similar to the votes needed to override a governor’s veto. In recent years, some conservative priorities — including Lippincott’s bill related to presidential electors, to end the “blue dot” — have fallen short by just a few votes.
Filibuster has grown in use
Part of the attention on the filibuster comes after the 2023-24 legislative session, when senators considered 78 cloture motions, 58 alone in 2023, the most in any year in legislative history.
In March 2023, Democratic State Sens. Machaela Cavanaugh of Omaha and Danielle Conrad of Lincoln, and Hunt, the nonpartisan progressive, filed 742 filibuster motions in one day on more than 100 bills. They brought the Legislature to a crawl to oppose Kauth and other Republicans over Legislative Bill 574, a bill they said would be harmful to transgender Nebraskans.
State Sen. Wendy DeBoer of Omaha, a Democrat who is vice chair of the Rules Committee, said she doesn’t look at the rules as “a partisan thing.”
“Everybody’s a minority in that body at some point,” DeBoer said, noting rural-urban and ideological differences. “We’re not easily grouped into two groups up there.”
The point after which cloture can be pursued is traditionally set by the speaker of the Legislature. Over the past decade, cloture has usually been allowed after eight hours in the first round of debate, four hours in the second round and two hours in the third and final round.
The speaker in 2024 began to halve cloture time for bills dealing with “social” issues late in the session.
Unlike for legislative bills, cloture can’t be invoked to shut off debate on rules changes. It takes 30 votes to suspend the rules in that instance.
A caution from Greater Nebraska
Jacobson said the filibuster rule, designed for senators to “talk” a bill to death, does get overused, but he said senators should “tread lightly” on changes.
The current 33-vote threshold means the largely rural 3rd Congressional District, which has 15 Republicans and one Democrat in the Legislature, and often aligns on agricultural policy, can’t filibuster a bill without support from the more urban districts, the 1st and 2nd, he said. If the rules change, the 3rd District might need more outside support.
Minority rights can run the gamut of who they represent. … That kind of minority might protect us at some point, and we’ve got to defend that.
– State Sen. Jana Hughes of Seward
State Sen. Dave Murman of Glenvil voiced similar concerns about ag-aligned senators being able to stop legislation that farmers or ranchers think could be harmful.
“Other than that situation, I would say I’d be in favor of making it easier to pass legislation,” Murman said.
Jacobson and State Sen. Teresa Ibach of Sumner also noted that central Nebraska had recently lost a legislative district to Sarpy County, which could happen again after the 2030 census.
Ibach, a member of the Rules Committee, said she could be more OK with the Kauth sliding scale proposal, because a senator being “present, not voting” is a conscious decision that she said shouldn’t affect a bill’s fate.
‘A powder keg’
Conrad, now in her 11th year as a senator, said she sees no reason for dramatic changes to the rules. She noted that two-thirds of senators have less than three years of experience in the Legislature, including Kauth and Lippincott.
“When you bring forward legislation that you know is going to ignite a powder keg, that’s when the rules really come into play,” Conrad said. “There’s never a rules fight when people are bringing forward thoughtful legislation. There’s a rules fight when senators bring forward divisive measures.”
Kauth herself needed the support of lawmakers who went to great lengths to vote in favor of LB 574, her 2023 priority bill to place restrictions on medications for minors with gender dysphoria.
Former State Sen. Ray Aguilar of Grand Island came to vote in March 2023 “without a knee,” Kauth noted. And former State Sen. Julie Slama of Dunbar left the hospital when she was dealing with complications from her pregnancy in May 2023 to pass Kauth’s bill, which was combined with a stricter abortion ban.
That was needed after cloture for a near-total abortion ban from former State Sen. Joni Albrecht of Thurston failed 32-15. One Republican and one Democrat were “present, not voting.”
Had the Kauth sliding-scale cloture rule been in place in 2023, lawmakers would have helped a bill advance that would have banned most abortions in the state after about six weeks gestation.
‘Present, not voting’
The current cloture rules helped Republican State Sen. Merv Riepe of Ralston win his push for a less restrictive approach to abortion after he refused to take a position on cloture.
He instead helped negotiate a later amendment to revive abortion restrictions through Kauth’s bill, still halving the allowable window for most abortions in Nebraska, to about 10 weeks gestation.
The NEGOP in May 2024 censured Riepe largely for side-stepping the cloture vote.
“I’ve said this much because I’ve been criticized on that. I say, ‘OK, I’ll give you a solid no,’” Riepe said last week.
“‘Present, not voting’ is a ‘soft no’ in legislative terms,” Riepe continued. “It’s trying to be polite that says, ‘I’m sorry, but I can’t go.’”
I think if you’re actually not going to take a stand on something, there should be a bit of a penalty.
– State Sen. Kathleen Kauth of Omaha
Riepe said he opposes efforts to change the cloture threshold because in the one-house, Unicameral Legislature there aren’t as many checks and balances to slow down the process as there are in a typical two-house, bicameral legislature.
“We’re supposed to debate stuff,” Riepe said. “We’re supposed to have differences of agreement.”
State Sen. Tom Brandt of Plymouth, a farmer who has been a swing vote, along with Riepe and Hughes, said he’s fine with the cloture rules as is.
Beyond obvious partisan splits, one notable rural-urban divide on cloture came in August on Brandt’s Legislative Resolution 2CA that could have allowed voters to decide whether owner-occupied housing could be valued below 100% market value. Rural senators led the filibuster. Cloture failed 26-16.
‘A bit of a penalty’
Kauth said it “always drove me nuts” and was frustrating before she joined the Legislature to see senators sit out votes by being “present, not voting.” So, in 2023, she tried to eliminate the practice.
After serving more, she saw many strategic reasons to employ the tactic, but “there’s no price to pay for it.”
“I think if you’re actually not going to take a stand on something, there should be a bit of a penalty,” Kauth said.
She has noted that seven senators were fighting cancer or helping a loved one fight cancer in the past two years, yet many of them got to the floor to cast decisive votes for their constituents. She described those efforts as “nothing short of breathtakingly impressive.”
Majority rule, minority rights
Speaker John Arch of La Vista, a nonvoting member of the Rules Committee, asked Kauth how senators could know before a vote for cloture is taken how many votes would be needed to be successful. Kauth responded that 33 votes should always be the goal, meaning all senators are present and voting.
Arch said the rules facilitate majority rule but protect minority voices, with the debate for him always around, “Where is that balance?”
Cavanaugh said senators should think carefully before any rule change because any reaction to her is against the whole body. Her constant filibusters in 2023 led to a rare mid-session rules change.
“To eliminate the voice and the protections given to the minority are just going to mean that we’re going to ramrod through legislation that wasn’t ready to be passed,” Cavanaugh said, defining the filibuster as “an opportunity for the minority to have a voice.”
Conrad agreed and said it would be “very myopic” to push partisan rules changes forward “in an attempt to silence progressive voices because, ultimately, that could backfire.”
“It’s critically important that we honor our oath that we took, voluntarily, to serve in a nonpartisan institution,” Conrad said. “… Any attempt to, I think, shift that balance or put a thumb on the scale for partisan purposes really should be viewed very, very skeptically.”
Rules Committee hearing
State Sen. Eliot Bostar of Lincoln, the other Democrat on the Rules Committee, cautioned Kauth and others at a Thursday Rules Committee hearing that tax policy has been one of the most important issues that splits more on rural-urban than along party lines.
Bostar also cautioned that a future “rogue” legislative speaker could steer cloture votes to when opponents were off the legislative floor and against previously defined limits for cloture.
Kauth responded that she didn’t foresee that happening, though lawmakers could respond if a speaker was “abusing” the authority.
State Sen. Ben Hansen of Blair, another Republican on the Rules Committee, echoed the sentiments at the Thursday hearing that “present, not voting” is a way to communicate to a bill sponsor, and constituents, that they’re in the “middle” on issues, not a “hard yes or no.”
Hansen suggested limiting Kauth’s sliding scale filibuster proposal, which was seen as more favorable during the Rules Committee hearing, to the third and final stage of debate — final reading.
Kauth said she was open to suggestions but that her proposal at all stages could help keep some bills alive.
‘Play by the rules’
The Rules Committee has not yet begun discussing the cloture proposals, instead focusing Thursday on whether to require leadership and committee chair elections to be public, rather than by secret ballot.
The committee has only discussed two other proposals, from Ibach and Hansen, to require statements of intent on legislation earlier in the session and to group more gubernatorial appointments for a single floor vote. Both changes are likely to advance to the full Legislature.
Other rules proposals being considered include:
- Creating a legislative technology or science committee.
- Removing a 20-bill cap, enacted in 2024, on how many bills senators can introduce each session.
- Cracking down on nongermane speech often used in filibustering by imposing new penalties, up to expulsion or impeachment.
- Barring news media from committee executive sessions.
- Clamping down on general filibuster motions.
Committee deliberations will continue Tuesday morning on what rules changes to advance. Arch has scheduled debate on rules proposals to begin Wednesday morning, for up to three days.
No matter the rules, Cavanaugh said, she’ll use them as they are available.
“I’ve always played by the rules, whatever those rules are,” Cavanaugh said. “I plan on continuing to play by the rules.”