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.

FILED UNDER: Campaign 2012, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. On the whole, though, I don’t think the filibuster should be eliminated entirely, or that it ever really can be.

    I must confess: I think it should be tossed, but agree that it won’t be.

  2. Hey Norm says:

    It only makes sense that the party which fully embodies hypocrisy would abolish the fillibuster…immediately after breaking all records for it’s use and abuse.
    I would like to see some reform…every single item should not be subject to supermajority requirements. But, like most things, it is fine when used in moderation.

  3. MBunge says:

    As many, many others have pointed out, the fillibuster would work fine if Senators would be forced to actually fillibuster things in the classic Mr. Smith manner. If every single time a fillibuster was used, it actually shut down Senate business and provided the media with a clear and obvious image of that deadlock, political pressure from constituents and various interest groups would build until a compromise was forced on most issues. Not to mention the personal inconvenience of having to fillibuster in person on the Senate floor would act as a practical deterrent. But because requiring Senators to physically fillibuster legislation instead of simply allowing them to threaten it has apparently become an unpardonably rude offense, there is little to no downside to consider.

    Mike

  4. The Tragically Flip says:

    You’re missing some very recent history. As recently as 2005, the Republicans apparently had 51 Senators and a Vice-President willing to change the senate rules mid-session in order to pass some blocked Bush lower court nominees.

    The “constitutional option” (then called the “nuclear option”) back then did not have the requirement of being done on the first legislative day, instead here’s how it works:

    Dems: (filibuster)
    GOP senator: “Mr chair, I would like a vote, and I believe these tactics are dilatory”
    Chair: I rule the tactics dilatory, unconstitutional and move to a vote.
    Dem senator: “I object to the ruling of the chair.”
    Chair: All those in support of overturning my ruling, (roll call)
    […]
    Chair: 49 votes to overturn my ruling, 51 in support, the ruling stands, let us now move to a vote on the matter of SR XXXX …

    The big secret of legislative bodies is that ultimately a majority can do anything it wants unless constrained from outside (eg laws or the constitution), because the rules “mean” what the majority says they do, and rules are “unconstitutional” if the majority says they are. There’s no court review of legislative internal actions, so if the chair rules, and is supported by the majority, the clerks and functionaries will do as they’re told and put a bill in front of the president for signature, regardless of the complaints from the aggrieved minority party.

    Every Senator knows this, which is why the grand “Gang of 14” compromise was actually a total cave in by the Democrats – who agreed to give the Republicans what they want, in exchange for not doing away with the filibuster. You don’t make a deal like that unless you acknowledge the other side really has the power to do what they’re threatening to do. Bush’s nominees were confirmed, and Dems did not filibuster another Bush nominee, including Alito.

  5. Rick Almeida says:

    @Steven L. Taylor:

    I’m not sure that a purely Majoritarian legislature is desirable.

  6. @Rick Almeida:

    Well,

    1) I am not sure why not.

    2) The Senate already over-represents minority populations.

    3) The fact that all legislation has to pass both houses (and faces a veto, for that matter, not to mention potential court review) means that eliminating the filibuster would hardly mean a pure majoritarian process to pass legislation anyway.

  7. @The Tragically Flip:

    There has been plenty written about the Constitutional Option since 2005, especially by progressives like Yglesias and Klein eager to reform the Senate. The consensus among most experts in Senate procedures at this point seems to be that the Constitutional Option is only available at the start of a Senate session. Otherwise, any change to Senate rules requires 60 votes and (I believe) any change to the Cloture Rules requires 67 votes.

  8. 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.

    I think you’re wrong here. If any rules change has to be done at the beginning of the Senate session, it doesn’t matter who wins the Presidential election because the new President and Vice President won’t be nominated until January 20th while the term for Congressmen begins on January 3rd and they must met on January 3rd (per the Twentieth Amendment) unless they chose to select day. Regardless of the exact day, they must met before January 20th to certify the Electoral College results.

    QED, the Vice President at the beginning of the session would be Joe Biden no matter what.

  9. @Timothy Watson:

    Fair point, although theoretically the Republican leadership in January 2013 could extend the Senate’s first legislative day in the same manner the Democrats did this January. Using this procedural trick, the Senate’s first day in session for 2011 started on the day Congress convened, quickly adjourned, and wasn’t formally gaveled out of session until the end of the month. For most of that time, the Senate did not meet but there were efforts behind the scenes to work out a filibuster reform deal that ultimately failed.

    If the Republicans win the Senate and the White House, they could use this procedure to delay a vote until the new Vice-President takes office.

  10. Hey Norm says:

    @ The Tragically Flip…
    Very nice Canadian rock reference.
    New Orleans is Sinking, man…and I don’t wanna swim…

  11. The Tragically Flip says:

    @Doug Mataconis: I appreciate the answer, and I know “plenty has been written” but I don’t see how you or Klein square that circle whatever the “experts” say. The Republicans were evidently ready to change the rules mid steam (or more accurately, declare portions of Rule 21 “unconstitutional”). Maybe it was a bluff, but the Gang of 14 took it seriously enough to craft their deal, and it really isn’t clear to me what would have stopped the Republicans if they had done it. The Courts are notoriously reluctant to intervene in internal legislative branch matters and aside from the court of public opinion, no one with any legal authority would be prepared to do anything about it.

    Walk down the hypothetical a step or two: The 2005 Republicans go nuclear, hold votes confirming the Bush nominees, I say those people would be duly sworn in as federal judges, and no one would stop it. Maybe historians and constitutional scholars would write critical things about the move, but if you had a case up in front of one of those Judges, I bet the argument that “you’re not a real judge since your confirmation vote was unconstitutional” wouldn’t get you very far.

  12. @The Tragically Flip:

    It’s worth noting that the nuclear option that was contemplated in 2005 would only have applied to nominations, not to legislation as a whole. If the GOP leadership were to try to eliminate the filibuster entirely, there’s no guarantee they’d have those 51 votes, partly because the membership of the GOP caucus has changed greatly since then and also because there are likely to be enough Senate veterans unwilling to change the rule that drastically.

    As for your question, again, its worth noting that the showdown in 2005 was only over judicial nominations, I think that puts the reality of what was going on there into context.

  13. Wayne says:

    The chair of the senate is the presiding officer who sits in the chair in the front of the Senate Chamber. Unless the VP is willing to do that every day then a member of the Majority would have that seat.

    The Democrats have already used the “nuclear option” this last year. Not threaten to but did. My suspicion is that the filibuster will not be eliminated in one big swoop but a piece at a time until it becomes worthless. Like many rights, it will be a gradual erosion over time then finally collapse.

    IMO the filibuster is mostly good. It help keeps the government from acting in a totally partisan manner. It help keeps the Government from acting too erratic. Imagine how much back and forth things would have change depending on who controlled the presidency and both chambers. However IMO it does need reform especially the Nomination part.

    Unlike many, my opinion on it doesn’t change depending on who has control of the White House and\or chambers.

  14. The Tragically Flip says:

    @Doug Mataconis: You’re actually proving my earlier point about how the rules mean what the majority says they mean. Neither Rule 22 (I wrongly said 21 in previous posts) nor the US Constitution calls out Judicial nominee confirmation votes as special or distinct in any way.

    As far as I can tell, the Republicans just sheer out of thin air invented this idea that filibusters of judicial nominees was somehow so different than filibustering legislation or executive nominees as to be unconstitutional. They did it because they had 51 Senators willing to support Dick Cheney in making that ruling.

    If anything, filibustering Judicial nominees would be the most appropriate place to filibuster given the lifetime appointment nature of the role. Executive nominees are term limited and can be fired. Legislation can be repealed (and also requires the House to pass it). Judges can only be impeached.

    So no, I don’t see how saying “we can change the Senate to make filibusters of judicial nominees unconstitutional in mid-session” is importantly different from “we can make all filibusters unconstitutional mid session.”

  15. Blue Shark says:

    @Rick Almeida:

    …As opposed to 41 Senators being able to out vote 59 Senators?

    …This is a tremendous impediment to the actual act of governing.

  16. Wayne says:

    Too much governing and too much government are a big part of the problem.