The Filibuster’s Inevitable Demise

Senate Republicans are pushing for the end of minority obstruction---and the Democrats can't wait.

Burgess Everett, reporting for POLITICO (“Coming soon: The death of the filibuster“):

The filibuster is in peril.

With Republicans expected to change the Senate rules to slash debate time on President Donald Trump’s nominees this week, it will mark the third time the “nuclear option” — changing Senate rules by a simple majority — has been triggered in just six years.

Each of those unilateral moves by a Senate majority to weaken the Senate’s age-old precedents centered on nominations, leaving the legislative filibuster and its 60-vote threshold unscathed. But some senators say it’s just a matter of time before even that Senate institution is more or less wiped away by a majority tired of seeing its big ideas blocked.

Though the Senate is up for grabs in 2020, neither party is expected to come away with a supermajority due to the limited number of competitive races. And that likely puts the supermajority requirement itself in jeopardy — particularly if one party controls the White House, House and Senate and wants to move its agenda.

And in true Senate fashion, Republicans and Democrats are already bickering over who is more likely to blow up the Senate as soon as 2021.

“It’ll go down the road,” Senate Appropriations Chairman Richard Shelby (R-Ala.) said of the filibuster. “If the Democrats take control of the Senate and we’re in a strong minority then they’ll change it immediately.”

“If eliminating the legislative filibuster will serve Sen. McConnell’s purposes, he’ll eliminate it,” said Senate Minority Whip Dick Durbin (D-Ill.). “After what Sen. McConnell has done to this institution, there will be many people who will be putting pressure on us to do the same thing.”

The latest change by Senate Majority Leader McConnell (R-Ky.) to cut debate time from 30 hours to two hours apiece for lower level executive nominees and District Court picks was, somewhat ironically, initially blocked by filibuster-wielding Democrats on Tuesday.

Just one Republican, Mike Lee of Utah, opposed moving to debate the rules change, making a broader argument that the Senate’s rules are intended to balance “competing interests of majorities, minorities, and individual senators.”

“They facilitate the compromise and accountability that are essential to the governing of a large, diverse nation,” Lee said. “I oppose changing the post-cloture time rule. I certainly oppose breaking the rules of the Senate to do so. The current rules can work for the American people; they simply require us to do the same.”

[…]

“We’re going to be the House of Representatives by the time my term is done. And that will be McConnell’s legacy,” said Sen. Chris Murphy (D-Conn.), who was just reelected to a six-year term. “We’re headed to a majoritarian institution. And maybe we’re better off. Maybe we’d be able to have actual debates and real amendments. The House has more debate than we do.”

If Democrats win the Senate and the White House next year, there will be enormous pressure for them to gut the filibuster to enact an ambitious progressive agenda — D.C. statehood or climate change legislation or some other proposal that will not find support among enough Republicans to pass the chamber under existing rules.

Meanwhile, Trump has made clear he wants to kill the supermajority requirement, a demand that may gain new momentum if he wins reelection and Republicans take back full control of Congress. Republicans held off Trump from changing the rules for two years of unified power, but he called for McConnell to go nuclear even after the election cost the GOP the House.

“I won’t be one calling for its elimination,” said Sen. John Cornyn (R-Texas). “That’s what President Trump wanted to do. And we kept telling him, ‘You don’t want that to happen.’ We don’t want that to happen.”

[…]

Democratic activists have helped turn the filibuster into a new litmus in the Democratic presidential primary. They argue that there’s almost no way to enact sweeping changes like “Medicare for All” or a “Green New Deal” if 41 GOP senators can stop everything.

Several Democratic senators running for president, like Elizabeth Warren of Massachusetts and Kirsten Gillibrand of New York, are open to gutting the legislative filibuster. Bernie Sanders of Vermont and Cory Booker of New Jersey have been cooler to the idea. But change can happen quickly.

A decade ago, few would have foreseen the end of the 60-vote threshold on presidential nominations. That was before Republicans began stalling President Barack Obama’s nominees and ultimately blocking several of them in 2013, which precipitated the first stroke of the filibuster’s demise.

[…]

“At the end of the day, these changes deepen the divisions and the slope continues to ending the filibuster,” said Sen. Richard Blumenthal (D-Conn.). “The ‘nuclear option’ used to be nuclear. No longer.”

A decade ago, when I was young and foolish, I was a supporter of the filibuster. Now that I’m older and wiser, however, I welcome its demise.

In an ideal world, I would still favor the practice. In such a world, ordinary legislation would be regularly passed on a bipartisan basis with only the most controversial bills being subject to a supermajority requirement. But, in our modern political reality—where pretty much every legislative vote is seen as a test of party loyalty—the filibuster is insanity.

I first cracked on the issue of judicial appointments. In that case, I’ve long thought that the filibuster was extra-constitutional. That is, the Constitution gives the President the right to make appointments subject to the advice and consent of the Senate. Requiring the President to achieve a supermajority in that instance turns the process on its head. And, again, that’s particularly true in an era when even relatively mainstream, extraordinarily qualified judges receive large numbers of negative votes. (It was not all that long ago, for instance, where the likes of Antonin Scalia or Ruth Bader Ginsburg were confirmed unanimously or quite close to it.)

Over the last fifteen or so years, the parties have escalated their use of the filibuster, making it the 60-vote/three-fifths margin the default. (Until 1975, the margin had been 67 votes, or two-thirds.) The “nuclear option” was threatened many times and averted by Gang of 7 deals. Finally, it was rebranded the “Constitutional option” and ultimately unleashed. It’s a matter of time—and I predict not much of it—before it’s gone entirely.

As suggested in Everett’s piece, the main thing that was keeping the institution alive this long has been a veil of ignorance. Since we have elections every two years, today’s majority can become tomorrow’s minority in a hurry.

Yet, ironically, it’s today’s minority that’s pushing hardest for the change. To be sure, McConnell may well pull the trigger to achieve short-term ends, particularly in getting as many Trump judges confirmed as possible. But the agenda being talked about by many Democratic presidential contenders and younger members of the Congressional caucus is radical: Medicare-for-All, a Green New Deal, and even packing the Supreme Court. There’s simply no way any of that happens with a filibuster in place.

FILED UNDER: Congress
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kylopod says:

    I agree it’s probably on its last legs, but I do find it interesting that McConnell didn’t attempt to nuke the legislative filibuster during the entire 2017-8 period, even though it presented a big obstacle to passing the legislation he desired, and Trump himself kept whining about it every few months on Twitter. They got around it using the reconciliation process for ACA repeal and the tax bill, but it made the design of those bills a big headache for them and contributed to the 2018 government shutdown and budget negotiations (because they no longer could use reconciliation, thus giving the Dems leverage). McConnell nuked the SCOTUS filibuster at the drop of a hat to get Gorsuch through, but he resisted doing it for legislation. If one of the most ruthless political leaders of our time didn’t do it, that suggests he still sees it as being of value to Republicans.

    (Small correction to your post: 2/3rds of the post-1960 Senate is 67, not 66.) [Fixed! -ed.]

  2. Teve says:

    A decade ago, when I was young and foolish, I was a supporter of the filibuster. Now that I’m older and wiser, however, I welcome its demise.

    In an ideal world, I would still favor the practice. In such a world, ordinary legislation would be regularly passed on a bipartisan basis with only the most controversial bills being subject to a supermajority requirement. But, in our modern political reality—where pretty much every legislative vote is seen as a test of party loyalty—the filibuster is insanity.

    Hear hear.

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  3. Hal_10000 says:

    A decade ago, when I was young and foolish, I was a supporter of the filibuster. Now that I’m older and wiser, however, I welcome its demise.

    I don’t. I favor any roadblock to legislation coming from either party. We’re seeing in Australia and New Zealand right now what happens without those — panic-mongering legislation trying to shut down social media sites. Everyone hates the filibuster — until the Republicans start trying to pass crazy legislation on a 51-50 vote.

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  4. Barry says:

    James: “Yet, ironically, it’s today’s minority that’s pushing hardest for the change. To be sure, McConnell may well pull the trigger to achieve short-term ends, particularly in getting as many Trump judges confirmed as possible.”

    First, McConnell wants not only to pack in as many confirmations as possible, but to install as many whack jobs as he can. I’m not exaggerating – IIRC, one nomination had to be withdrawn because it was clear that the nominee could not pass a high school civics test.

    Second, demographics are pointing to a Senate in which the majority of seats will be held by people representing a smaller minority of US citizens (IIRC, ~30%). This means that the GOP is greeting ready to act more like the Afrikaner Party than what we are used to.

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  5. Kathy says:

    Well, then, in that case, they’d best reduce the Senate term to two years as well.

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  6. Kylopod says:

    @Hal_10000:

    Everyone hates the filibuster — until the Republicans start trying to pass crazy legislation on a 51-50 vote.

    But that’s not historically how the filibuster has worked. As mentioned, it was used infrequently, and it wasn’t a tool of any one party’s agenda. In the ’60s the threshold for cloture was 67 votes rather than the 60 today–yet no one tried to filibuster Medicare or most of LBJ’s Great Society programs. But he did have to overcome a filibuster from members of his own party to get the Civil Rights Act through (in fact preventing civil rights was one of the commonest purposes of the filibuster historically, a clue to why I have such a negative view of it).

    The norm today of the “60-vote Senate” where almost every legislation is party-line or nearly so is very, very new, and it’s a pretty gross distortion of how a productive legislature is supposed to work.

  7. An Interested Party says:

    But the agenda being talked about by many Democratic presidential contenders and younger members of the Congressional caucus is radical: Medicare-for-All, a Green New Deal, and even packing the Supreme Court.

    It’s funny how so many ideas which have the full or partial support of the majority of people in this country are characterized as being “radical”…I guess the American people are more radical than many would like to admit…

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  8. Todd says:

    I’ve been saying this for a while, regardless of which party is in charge.

    The Constitution specifies several situations where a supermajority is required. It just seems that if it had been the intention for a supermajority to be needed to pass legislation, or to confirm judges or executive branch nominees, it would be right there in the text.

  9. Todd says:

    On a sort of related note: political parties (especially just two) were not really envisioned to be the driving force in our governing process. Senators and Representatives were supposed to vote based on the regional interests of their constituents. If all of our politics is going to be nationalized, we might as well just throw the whole system out and move towards the parliamentarian form of government used by much of the rest of the world.

  10. Just Another Ex-Republican says:

    To me the big change in the filibuster came about when the rules were changed (in the 60’s I think?) to allow a Senator to initiate a filibuster simply by notifying leadership he intended to do so, instead of having to actually get up and talk (aka Mr Smith Goes To Washington). Gradually the parties –led by McConnell, who has effectively destroyed the Senate as an institution– realized they could “filibuster” anything to require Senate a super-majority with no real work or consequences. It’s still a news item when a true talking filibuster happens, but they are vanishingly rare. Instead someone just says “I will filibuster that” and debate just stops. No bad optics of people reading phone books, arguing 24/7, or anything else.

    Personally I think reformers should argue for going back to a talking filibuster for everything (including judicial appointments). It was the norm for most of the country’s history (becomes a much easier argument to make when countering idiots claiming it’s against the traditions of the Senate and Constitution). It’s become abused because it’s painless for obstructionists, not because it doesn’t have a potentially useful purpose.

  11. James Joyner says:

    @An Interested Party:

    It’s funny how so many ideas which have the full or partial support of the majority of people in this country are characterized as being “radical”

    I use “radical” in the sense of “fundamental” and “far-reaching.” I’m quite sympathetic to the idea of Medicare-for-all, for example. I think the Green New Deal as currently articulated is absurd but the broader notion that we ought to invest a lot in trying to deal with climate change makes sense to me. I would like to see a radical reformation of the Supreme Court but not through a packing scheme; something systemic like 12-year terms or a new Justice every four years regardless of retirements strikes me as far preferable to partisan tit-for-tat.

  12. Sleeping Dog says:

    If the Dems retake the Senate in 2020, you can be sure that Mitch will be the first one screaming about how the Dems are destroying the tradition of the Senate.

    Filibuster should die.

  13. An Interested Party says:

    I would like to see a radical reformation of the Supreme Court but not through a packing scheme; something systemic like 12-year terms or a new Justice every four years regardless of retirements strikes me as far preferable to partisan tit-for-tat.

    I can appreciate that, but a correction must be made for what happened with Merrick Garland…that cannot be allowed to go unchallenged…

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  14. Jc says:

    Please get rid of the filibuster. That would be progress. Times are a changin’…hopefully

  15. Matt says:

    @Just Another Ex-Republican: I agree they should return to the old filibuster where you actually had to stand up there and filibuster…

  16. rachel says:

    A decade ago, when I was young and foolish, I was a supporter of the filibuster. Now that I’m older and wiser, however, I welcome its demise.

    Me too. It was a sometimes-useful checkpoint when both parties used it sparingly, but even then its anti-democratic nature removed the public even farther from living with the consequences of how (or even whether) they voted.

    Now it is helping to make our government unworkable too much of the time.

  17. The abyss that is the soul of cracker says:

    “The current rules can work for the American people; they simply require us to do the same.”

    Well forgive me for saying so, Senator Lee, but there’s your problem right there. You’re expecting “us” to “work for the American People” and unless you got a mouse in your pocket…