Tag: filibuster

Kill the Legislative Filibuster?

By Todd Lassa

Before last November’s election, Joseph R. Biden punted on the question of whether he supports killing the Senate legislative filibuster. It’s a move Senate Democrats have been considering at least since it won a majority by the slimmest of margins, with Vice President Harris the tie-breaker for when legislation is split down party lines 

The issue is not the first priority with Senate Democrats, who are moving President Biden’s $1.9-trillion coronavirus relief package via the arcane reconciliation process, which requires a simple majority vote rather than the 60 votes – including 10 Republican senators – necessary when the potential of a filibuster is involved. 

The question is, how much legislation can Biden’s Democratic allies in the Senate pass in the next two years without eliminating the legislative filibuster, which means most bills will require those 10 Republican votes? After January 2023, Democrats either will lose their wafer-thin Senate majority, or will build on it, though it is unlikely either party will gain at least 10 senators in the November 8, 2022 mid-terms. 

Filibuster reformation seems to come up every four years with the presidential election, if not every two years. 

In 2013, then-Senate Majority Leader Harry Reid, D-NV, rallied Democrats to end the filibuster for federal judicial nominees and executive office appointments. Spiking the filibuster, called “the nuclear option,” requires only a simple majority vote. 

Republicans warned that triggering the nuclear option on appointing federal judges would come back to bite Democrats whenever they inevitably lost the Senate majority. 

And they were right. In 2017, then-Senate Majority Leader Mitch McConnell, R-KY, led a majority of his party to end the judicial filibuster for U.S. Supreme Court nominees, paving the way for President Trump’s nomination of Neil Gorsuch as replacement for the late Justice Antonin Scalia. Adding hard-core partisanship to injury, Gorsuch’s Senate approval came the year after McConnell prevented a vote on Obama’s nominee late in his term to replace Scalia, Merrick Garland, who now is Biden’s nominee for attorney general.

In the end, Trump saw his three Supreme Court associate justice nominees get Senate approval in his four years in office, compared with Obama’s two associate justices in eight years. 

The question for Democratic senators now is, how much more of Biden’s agenda could the Senate pass in the next 23 months if just 51 votes were needed? And would it be worth weathering the inevitable Senate and White House flip somewhere off in the future?

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Not Carthage, But Important

By Stephen Macaulay

On January 26, Senate Minority Leader Mitch McConnell (R-KY) tweeted, "I made clear that if Democrats ever attack the key Senate rules, it would drain the consent and comity out of the institution. A scorched-earth Senate would hardly be able to function." 

He was talking about the filibuster. The Senate cloture rule calls for a supermajority, or 60 votes, to cut off debate. The Democrats, who hold a simple majority, would prefer that is all that is required to end debate; odds are, with Vice President Harris as president of the Senate, they would end all debate on subjects and get right to the voting, which they would again, as bill passage depends on a simple majority, come away as victors.

While “scorched-earth” may be a bit of an exaggeration — after all, we’re not talking the Third Punic War here and the salting of the ground upon which Carthage once stood — but a point of trying to uphold what the Senate should be about: being a deliberative body (it would be hard to put “greatest” in front of that term). To deliberate means to debate. To debate, when done properly, means to have an exchange of ideas, of opposing viewpoints.

In one regard it is somewhat ironic that I open with a tweet from McConnell in that it seems too many political issues are now being dealt with in 280 characters, rather than with an open, fulsome, spirited debate.

The Senate structure, as you know, is one where each state has equal representation. (The House, of course, has a structure predicated on population.) The point of the way the Senate is put together is to protect, in effect, the minority, meaning that California and New York can’t step on Wyoming and Vermont.

The Senate cloture rule does the same thing by requiring that there be two thirds, not one half, of the body in agreement that debate ends.

Of course, there’s the question of whether this is too high a bar, if getting cloture is some sort of impossibility. Perhaps that was once the case (or Senators just tended to be more loquacious back in the proverbial day) because from 1917 to 1968 cloture was invoked just eight times.

In 2019-2020 it was invoked 270 times (a record).

There is a feeling that we “must get things done.” A bunch of droning Senators doesn’t seem to be the way that can or will happen.

But McConnell does have a point, with the point being that before important things get done there needs to be sufficient support — by both sides — for its execution to have the positive effects anticipated by its existence.

To simply have a situation that says, in effect, “OK. We’ve had enough. Go back to your desk and put your head down,” isn’t going to be particularly beneficial.

This is not to argue that McConnell is an exemplary politician. He has proven himself over the years to be more of a tactician, a man who makes moves to benefit his, and his party’s, interests.

But there is something to be said for the ability of the minority to be heard in a fulsome manner.

And McConnell ought to know that Senate Majority Leader Chuck Schumer (D-NY) is far from being Cato.

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