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After much public hand-wringing, the Senate reportedly is planning to go “nuclear” on its debate rules for floor nominations this week.
I can count on one hand the number of people outside Washington, D.C. (or inside, D.C., for that matter) who are likely to care about this. But if my more than a decade in conservative politics has given me anything, it is an enthusiastic affinity for obscure (and probably doomed) causes. To that end, I present my dogged defense of why you—the gentle, voting American with a million more important things to care about—should also care about the Senate’s rules.
First, some background.
Current Senate rules say that once cloture is invoked on a nomination (that is, once the Senate has decided to end debate), 30 hours of debate remain until the final vote. Republicans are proposing to reduce those 30 hours of debate to only two hours for all nominations outside of the Supreme Court, circuit court nominees, or senior executive branch nominees.
Changing a Senate rule, however, requires 67 votes. Republicans don’t have the votes to do that (there are only 53 of them). Enter the “nuclear option.”
The business of “going nuclear” involves senators voting to create a precedent—that is, a method of doing business (kind of like case law)—that is in violation of one of the Senate’s standing rules. Rather than requiring the 67 votes necessary to change a rule, creating a new precedent only requires a simple majority.
This is the same way Senate Majority Leader Harry Reid (D-Nev.) eliminated the 60-vote threshold for all judicial and executive branch nominees in 2013. Majority Leader Mitch McConnell (R-Ky.) did the same thing for Supreme Court nominees in 2017.
Deploying the nuclear option means that every time the Senate ends debate on a nomination at two hours, instead of 30, they would be violating their own rules. The same thing happens on judicial nominations that move forward with only 51 votes. The precedent says this can happen at 51. But the rule still says it requires 60. In other words, the Senate’s rules haven’t changed, the Senate has just agreed with 51 votes that the rules no longer matter.
So, why are Senate Republicans so interested in this? Over the course of two years, Republicans have faced what they call “historic opposition” from Senate Democrats. And, to an extent, that’s true. President Trump has only 64 percent of his nominees confirmed, compared to 83 percent for President Bush and 80 percent for President Obama at the same point in their terms.
It’s a reasonable argument, but the proposed solution is short-sighted and, if implemented, would do long-term damage to the institution.
Here are three reasons why.
This is a lazy way to address a problem that already could be fixed using existing Senate rules.
Senators are lazy. There’s no other way around it. They work two-and-a-half days a week. They hardly vote on amendments (or anything). They waste most of their session time in endless quorum calls when they could be voting.
But nuking the debate rules doesn’t mean they will work harder. Rather, it allows them to be even lazier.
Here’s the secret about the Democrats’ obstruction. It exists because Senate Republicans are letting the Democrats get away with it.
Under existing Senate rules, senators are only allowed to speak no more than twice for no longer than one hour during the 30 hours of final debate time. If no senator is seeking to use that debate time, McConnell could immediately call the vote.
In other words, if McConnell were properly enforcing the Senate’s existing rules, 30 different Democrats would be required to speak for all 30 hours to be used. In the event that doesn’t happen (because, to make it more difficult, McConnell could also force the debate to take place in the middle of the night), maybe only 10 Democrats show up. Or eight. Or two. Those 30 hours rapidly diminish.
Instead, Democrats have been demanding 30 hours of time to debate—and not using it. And McConnell has allowed them to do so without consequence. He’s not forcing them to the floor to use the time, because he’s not threatening them with losing it.
It’s why when you turn on C-Span 2 to check out the action on the Senate floor, you are usually met with deafening silence, with the clerk occasionally croaking out the name of a senator as she calls the roll with all the alacrity of a melting glacier.
Nuking the rules does not actually provide senators with more resources than they already have. It just allows them to be even lazier than they already are.
The Senate would have greater incentive to go hard in the paint for judges, forsaking the rest of Trump’s nominees.
If Republicans decide to nuke the 30 hours of debate time, Democrats likely will respond by withholding consent for any future executive branch nominees, making them more difficult to confirm.
When given a choice between confirming a political appointee who will serve the next two years, or a judge with a lifetime appointment, Senate Republicans obviously will choose the latter. The effect will be that judges are prioritized for floor time, and Trump’s political appointees are not.
Prioritizing judges is not, in itself, a bad thing. Getting good judges on the court for lifetime appointments is significant, considering how much of our policy is now decided there (instead of in Congress). And the Senate should be confirming judges, seeing how easy it is to do now that the 60-vote threshold has been removed. (Thanks, Harry Reid!) What once required a fair amount of political horse trading and arm twisting now simply requires scheduling.
But it would be a huge detriment to President Trump if his executive confirmations suffer as a result. Personnel is policy, and nothing has made this lesson more abundantly clear than the bureaucracy actively seeking to undermine the president. Political appointees, many of whom require Senate confirmation before they can start their jobs, are the executors of the president’s agenda across the government. Without them, he has very little impact at the agency level.
Continuing to nuke Senate rules ultimately puts the 60-vote requirement for legislation at risk.
Nuking is partisan and easy, which makes it attractive and addictive. That’s why it builds on itself. Reid started tearing down the judicial filibuster in 2013. McConnell eliminated the rest of it in 2017. And now, in 2019, what was once an unthinkable option is now almost mundane. It’s becoming normal.
So how long until the legislative filibuster (the 60 vote requirement for bills) suffers the same fate? There are those—Republicans and Democrats alike—who would support that outcome. But as I’ve written here, here, and here, it’s bound to result in bad outcomes in the long run, particularly for whomever is in the minority party. For conservatives, who are usually always in the minority regardless, this is especially true.
The Senate has long been the Congress’ last line of defense against passage of highly controversial pieces of legislation.
- In 2007, President Bush’s immigration reform effort—including provisions providing legal status for many illegal immigrants, opposed by many conservatives—failed to receive the necessary 60 votes to end debate.
- In 2008, the Lieberman-Warner Climate Security Act of 2008—a cap-and-trade carbon tax—failed because of its inability to reach 60 votes.
- In 2012, House and Senate Democrats attempted to pass legislation that would enhance the ability of employees to file pay-related lawsuits. The bill failed to receive 60 votes.
- In 2014, the Senate failed to achieve the 60 votes necessary to move to a vote on a bill to override state law in establishing universal background checks for firearm purchases.
- Also in 2014, an attempt by Senate Democrats to amend the Constitution by passing campaign finance measures that would have limited election speech failed to receive 60 votes.
In the era of Medicare-for-All, the Green New Deal, or the Democrats’ attempt to rewrite election laws, it would be ill-advised to remove the last measure of protection for minority views.
But Wouldn’t the Democrats Nuke the Filibuster Anyway?
The classic talking point against protecting the legislative filibuster is that the Democrats are going to do away with it anyway, so why wait?
There are two problems with this argument. The first is that it’s not necessarily true. Democrats have a real case of buyer’s remorse for nuking the judicial filibuster, which has allowed President Trump fundamentally to re-shape the judicial character of the courts. The clapback is still too real, and the consequences too fresh, for many Senate Democrats to be inclined to go proactively nuclear again, or at least anytime soon.
That said, there is risk for Republicans in normalizing a behavior that previously was considered verboten. If the GOP continues to use the nuclear option as a problem-solving tool, it makes it easier for the Democrats to do the same in the future. Bad behavior begets bad behavior.
But the second, and more important point, is that Republican efforts to eliminate the legislative filibuster would not necessarily translate into “conservative” victories. Simply being able to pass legislation at 51 votes does not mean the legislation will be any good, or that it will even happen at all.
Consider the past two years, when Republicans had unified government control and the ability to repeal Obamacare at a 51-vote threshold in the Senate, along with 52 Republicans. They still couldn’t do it. What did they do instead? Pass bloated spending bills that funded Planned Parenthood.
Moreover, even if the legislative filibuster changes, the Senate GOP can be reliably counted on to still only work two-and-a-half days a week, deny members amendments, and write most of the bills behind closed doors.
It’s a high bar to say anything will actually change, particularly for conservatives, who will now just have bad bills jammed down their throats with 51 votes, instead of 60.
The converse, however, is also true. If given a Senate without a legislative filibuster, rest assured that the Democrats would wield that power in terrifying ways. Unlike Republicans, they wouldn’t take off half of the work week. They’d work seven days a week. And they’d keep their party in line, passing terrible legislation that Republicans wouldn’t be able to undo.
The stakes are too high to push Democrats into this by normalizing the nuclear option. And the payoff is too low for Republicans to be the ones to do it.
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