With Republicans set to return to Washington in January with full control of both the Legislative and Executive Branches for the first time since losing control of Congress in the 2006 Mid-Term elections, many observers are preparing for battles in the Senate between Republicans and Democrats as the GOP attempts to push through an agenda that seems likely to include everything from an attempt to “repeal and replace” the Affordable Care Act and tax reform to a likely Supreme Court nomination that should come shortly after January 20th if not at some point before then. While the GOP majority in the Senate, likely to end up at 52 -48 after the runoff for Louisiana’s Senate seat on December 10th, is smaller than it was prior to the election, it is still solid enough to expect that Republicans will be able to get most of their proposals through the Senate and to the new President relatively easily. The one stumbling block, of course, would be the filibuster and the need for sixty votes to proceed forward with legislation and Supreme Court nominations. Many observers have assumed that the GOP would quickly get rid of the filibuster, at least for Supreme Court nominations, if Democrats attempted to use it in the manner that Republicans became so adept at from the time President Obama took office until they regained control of the Senate two years ago, One senior Republican, though, is warning against, the idea of eliminating the filibuster, a possible indication that we may not see the end of the filibuster any time soon:
WASHINGTON — Republicans hankering to end the filibuster so they can enact President-elect Donald Trump’s agenda without interference from Senate Democrats can pretty much forget it.
To change the rules and end the minority party’s rights to blockade legislation and Supreme Court nominees requires either agreement at the start of a new Congress(which Democrats would oppose) or a series of procedural votes. The latter, known as the “nuclear option,” could rewrite the rules with just 51 votes.
Democrats did that for two years for presidential nominations below the level of the Supreme Court to move some of President Barack Obama’s many stalled nominees.
Now some Republicans, especially in the House, are pushing for Republicans in the upper chamber to nuke the rest of the filibuster, clearing the way for a Trump agenda.
But with the GOP holding just a 52-seat majority next year, it would take only two defections to end that threat, and some Senate Republicans already have expressed strong reservations about the idea.
On Wednesday, Sen. Orrin Hatch (R-Utah) may have put a dagger in the scheme.
Asked by The Huffington Post about ending the filibuster, he was blunt.
“Are you kidding?” he said with some vehemence. “I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.”
Hatch, the most senior member of the GOP, presides over the Senate every morning as the president pro tempore, making him third in the line of succession to the White House. He’s also chairman of the Senate Finance Committee.
In addition to Hatch, South Carolina Senator Lindsey Graham is also vowing to oppose any effort to eliminate the filibuster:
With Republicans in control of the House, the Senate and, come January, the White House, calls have come from some quarters of the Republican Party to eliminate the filibuster and ram through an unadulterated Trumpian agenda.
Sen. Lindsey Graham (R-S.C.) on Tuesday thoroughly rejected that approach. “That’s a horrible, terrible idea,” he said after an off-camera briefing with reporters in the Capitol.
Asked if he’d vote against the effort if it came to the Senate floor, he said he would “in a heartbeat.”
Senate Majority Leader Mitch McConnell (R-Ky.) has so far shown no indication he plans to pursue what’s known as the nuclear option. But if he did, just three Republican “no” votes would stop the measure from passing. Republicans hold 51 seats, and will have 52 if they win an upcoming election in Louisiana as expected. Graham would not have great difficulty finding a handful of allies in opposing the elimination of the filibuster.
On a political level, McConnell may actually benefit from the filibuster being in place. First, it could serve to check Donald Trump’s power, which has the counter-effect of increasing McConnell’s. And second, Democrats who filibuster Trump’s agenda can then be attacked in 2018 midterms. When the Trump faithful demand to know why, say, Obamacare has yet to be repealed, McConnell will be ready with an answer: obstructionist Democrats.
Graham was a strident opponent of Trump during the campaign, but said he has hope Trump will succeed and he stands ready to work with him on areas where there is mutual agreement.
Requiring Trump to work with Democrats, Graham added, gives him the chance to make the kinds of deals he wants to make. “There are deals to be made in this body ― big, huge deals,” he said.
“I don’t think he’s an ideologue,” Graham went on. “He lives in a world where the other side has to get something. So in that regard, he has a unique position here. He’s not beholden to any one element. He’s truly an outsider and if he will bring us all together and bring us around a table, some of this stuff will fall into place pretty quickly. To those Democrats who are going to hit him at every turn, you do so at your own peril.”
Admittedly, Hatch and Graham are somewhat unrepresentative of the Senate GOP Caucus as a whole at this point. While both of them may have entered office being among the more conservative members of the upper chamber at the time, Republicans who have come to the Senate in the years since they arrived. Nonetheless, their opposition to filibuster repeal is significant because it likely dooms the entire idea for at least the time being. Thanks to Harry Reid’s November 2013 precedent, Republicans would need at least 50 votes (plus the tie-breaking vote of Vice-President-Elect Mike Pence) to rewrite the Senate rules to eliminate the filibuster in whole or in part. This means that it would only take a handful of Republican Senators to defect from whatever reform plan was being proposed for it to fail to pass. With Hatch and Graham both opposed to the idea, in fact, it would mean that there would only need to be one other Republican to oppose reform and the proposal would fail. That third vote could come from any number of Republicans but is most likely to come from one of the longer-serving members, which would include people such as John McCain, Lisa Murkowski, Susan Collins, John Cornyn, Thad Cochran, and Mike Enzi. Additionally, it’s worth noting that Senate Majority Leader Mitch McConnell, who was easily re-elected to his position earlier this week by the incoming caucus, has not stated one way or the other where he stands on the issue of filibuster reform and that his opposition to the idea would not only doom any such proposal by depriving it of a majority but would guarantee that the issue never even makes it to the Senate floor.
These developments put House and Senate Republicans who may be hoping for the elimination of the filibuster in a position similar to that of many Democrats during the early years of the Obama Administration when Republicans were being most effective in blocking legislation and nominations by utilizing cloture votes to prevent final votes or even debate on Administration proposals. When some Senate Democrats first tried to reform the filibuster in 2010, several veteran Democrats made it clear that they would oppose the proposed reforms, arguing among other things that the party would regret eliminating or weakening the power that the filibuster gave to a Senate minority when the inevitable time came that they were in the minority themselves. The same thing happened in 2012 when younger Democratic Senators once again attempted to push efforts to reform the filibuster in the wake of President Obama’s re-election victory. It was only after months of Republican refusal to let virtually any nominee by President Obama proceed to a vote that then Senate Majority Leader Harry Reid was able to gain enough support in his cough for the filibuster rule reform that was adopted in November 2013, and it was widely believed at the time that the fact that the change only applied to votes for Executive Branch appointees and Judicial nominations below the Supreme Court level was a reflection of the fact that he needed to limit how far the reforms went in order to hold his own caucus together. For now at least, it appears that Republicans seeking to limit the power of Democrats to assert influence in the legislative process via the filibuster are going to find insufficient support for their desire to eliminate the filibuster. Whether or not that continues will depend on a number of factors that could take years to play out.
