Would Republicans Eliminate The Filibuster? Could They?
How likely is it that a GOP Senate would eliminate the filibuster? Not very.
Writing in response to a long piece from late last week about the ongoing battle in the Senate over the appointment of a Chairman for the Consumer Financial Protection Party, one of James Fallows’ readers posits that the GOP would act to eliminate the filibuster if they capture the Senate in 2012:
I believe what will happen will in some ways be worse, at least in the short term, if perhaps sadly better in the long term: if the GOP retakes the Senate after the 2012 elections, they’ll simply abolish the filibuster.
In the long term, that will actually perhaps be for the good of our country, considering how the GOP has abused and short-circuited the legislative process. In the short term, however, the results are obviously likely to be terrible. Hopefully, the short term will truly be short, rather than relatively so, and the awful legislation the Senate is likely to pass will lead to a return to sanity for the Republicans and/or more and better Democrats getting elected. I’m not optimistic, unfortunately.
Balloon Juice’s mistermix agrees:
I think this is exactly right. The minute there are 51 Republicans in the Senate, we’re going to hear howls of “straight up or down vote”. They’ll be aided and abetted by the DC media, who will inform us that the filibuster is a relic of bygone days that has been abused by both sides, it’s high time that it was eliminated, it really is a scandal that it has persisted so long, and the nation is lucky that Republicans are patriotic enough to foster a reform that’s long overdue.
Theoretically, it would be possible, but it requires a number of factors to come together, and for veteran Republicans to agree to the plan. It’s the so-called “Constitutional option,” and Ezra Klein described it back in 2010:
The constitutional option gets its name from Article I, Section V of the Constitution, which states that “Each House may determine the Rules of its Proceedings.” In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.
One caveat: Many people, including Udall himself, believe this has to happen at the beginning of a new Congress. If it doesn’t happen at the beginning of a new Congress, then Congress is considered to have acquiesced to the previous Congress’s rules, and a filibuster against further rule changes wouldn’t interrupt the constitutional right to determine the rules.
The Chair in this case would be the President of the Senate a/k/a the Vice-President. If President Obama wins re-election that would be Joe Biden and it seems highly unlikely that he would rule in favor a Republican majority if his fellow Democrats are opposed to whatever reform proposal the GOP leadership might be trying to push through. Now, of course, it’s possible that Senate Republicans and Democrats would work together to reform the rules, in which case a reform package could pass easily. It’s also possible that the President will ride down Constitution Avenue on the back of an elephant on Inauguration Day 2013. It’s just not very likely. Therefore, if President Obama and Vice-President Biden are re-elected but the GOP captures the Senate, you can pretty much write-off any effort by the new leaders to reform or eliminate the filibuster.
But what if the Republicans take the White House along with the Senate? Even then, the likelihood of wholesale filibuster reform isn’t that great, and all we need to do is look at recent history to see why.
The Democrats have made two attempts in recent years to implement filibuster reform. In July 2010, a Democratic effort at filibuster reform in the middle of a session fell apart when several long-serving Democratic Senators announced their opposition to large scale filibuster reform. Among the Senators standing in opposition to the move were Diane Feinstein, Daniel Akaka, Mark Pryor, Carl Levin, Jon Tester, and Ben Nelson. Then, in January at the beginning of the new Senate session, Democrats tried to utilize the above-described “Constitutional option” to implement a filibuster reform package sponsored by Tom Harkin and Jeff Merkely. That effort died when it became obvious that there were not even 50 Democratic votes in favor of what was, in the end, a rather modest reform of the filibuster.
Is there any reason to believe that the same thing wouldn’t happen if the GOP managed to win the Senate next year? It’s true that Senate Republicans have managed to be remarkably united over the past three years in filibuster votes and the like, but it would likely only take one or two senior (or not-so-senior) Republican Senators to object to the idea of radical filibuster reform to prevent it from being implemented. As with the Democrats who declined to sign on to their party’s reform efforts, it’s likely that you’d find at least a few Republicans willing to point out the value of the filibuster, and the fact that the GOP is likely to find itself in the minority yet again some day.
So, to answer the concerns noted above, the odds of eliminating the filibuster seem slim to nonexistent. Perhaps we can hope for reforms of some type, though. The most important would seem to me to be reforming the manner in which filibusters are applicable to Executive Branch and Judicial appointments and treaties, the two areas where the Senate’s “advice and consent” role comes into play. That kind of reform will have to be bipartisan, though, and it may require the GOP to get a bit of a lesson on what it feels like to be on the receiving in of aggressive use of the filibuster. On the whole, though, I don’t think the filibuster should be eliminated entirely, or that it ever really can be.
Update: As Timothy Watson notes in a comment, when the Senate convenes for its first legislative day on January 3, 2013 the President of the Senate will still be Joe Biden regardless of who wins the Presidential election. This is true, however if there were really support for filibuster reform in the GOP caucus such that Mitch McConnell was confident he had at least 51 votes, he could use the same procedural loophole that Harry Reid did earlier this year when he extended the Senate’s first legislative day until the the end of January. If a Republican wins the White House, the Senate GOP could use the same process to extend the first legislative day until after the new Vice-President is sworn in, although that would be slightly more difficult because they would also need to conduct confirmation hearings for cabinet members during that month.