Winning a majority in Congress doesn’t settle things in Washington. There are two other hurdles to passing legislation, one constitutional and one not. They are the presidential veto and the Senate filibuster.
The Veto
After Congress passes a bill, the president has 10 days, not counting Sundays, to sign it or veto it. Overriding a veto takes two-thirds of the members present in each chamber. That would be 290 in the House and 67 in the Senate if all seats are present. If Congress has adjourned and the president doesn’t sign the bill, it dies. That’s called a “pocket veto,” and it can’t be overridden.
President Donald Trump said he would become “Mr. Veto” if Democrats win Congress. He predicted that after “a couple of months” of vetoes, Democrats would come to him to make a deal, he told CBS News. In his first term, Trump vetoed 10 bills, and Congress overrode one.
The Democrats currently have 54 Senate seats and 237 House seats, with two Senate races and 59 House races remaining to be called, so Democrats won’t get the numbers needed to override a veto on their own. Overrides are rare in any case; more often, the threat of a veto is enough force changes in legislation before it reaches the president’s desk.
The Filibuster
The filibuster exists only in the Senate and it is nowhere in the U.S. Constitution; it comes from the chamber’s own rules. Before a bill can be sent to the president to sign, it must be introduced, debated and then voted on. Before the Senate can vote on a bill, it has to vote to end debate, which is called a “cloture vote.” The filibuster is a way to stall bills and prevent votes on cloture. (Its origins date back to the 1830s and for the first 140 years or so required senators to physically speak to prevent a vote from happening. Today, that is no longer required.)
Ending debate requires the vote of three-fifths of senators, or 60 if there are no vacancies, making that the effective vote threshold for passing legislation. Over the years, the Senate has carved out exceptions that need only 51 votes, including all presidential nominations (Supreme Court justices among them) and some budget bills. However, because the filibuster is not in the Constitution, a majority of the Senate can scrap it with 51 votes: the so-called “nuclear option.”
