tag:theconversation.com,2011:/uk/topics/filibuster-13488/articlesFilibuster – The Conversation2023-09-01T12:43:01Ztag:theconversation.com,2011:article/2105872023-09-01T12:43:01Z2023-09-01T12:43:01ZSen. Mitch McConnell’s legacy is the current Supreme Court and a judiciary reshaped by his ‘calculated audacity’<figure><img src="https://images.theconversation.com/files/578744/original/file-20240228-22-5an3a8.jpeg?ixlib=rb-1.1.0&rect=35%2C21%2C4687%2C3122&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Minority Leader Mitch McConnell departs the Senate chamber on February 28, 2024 in Washington, DC. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-minority-leader-mitch-mcconnell-departs-the-senate-news-photo/2038738239?adppopup=true">Photo by Nathan Howard/Getty Images</a></span></figcaption></figure><p>Mitch McConnell, who announced on Feb. 28, 2024, that he would <a href="https://www.nytimes.com/2024/02/28/us/politics/mitch-mcconnell-senate.html">step down as the Senate GOP leader</a> later in the year, used his tenure as the longest-serving Senate leader of any party to <a href="https://www.politico.com/news/2020/09/28/senate-judiciary-staffs-up-for-barrett-fight-422595">remake the federal judiciary from top to bottom</a>. </p>
<p>His success could hardly have been predicted when Senate Republicans elected McConnell as their leader in 2006. For most of the 40-plus years I have watched McConnell, first as a reporter covering Kentucky politics and now as a <a href="https://ci.uky.edu/jam/faculty-directory/al-cross">journalism professor focused on rural issues</a>, he seemed to have no great ambition or goals, other than gaining power and keeping it. </p>
<p>He always cared about the courts, though. In 1987, after Democrats defeated Supreme Court nominee Robert Bork, <a href="https://www.pbs.org/wgbh/frontline/film/supreme-revenge/">McConnell warned</a> that if a Democratic president “sends up somebody we don’t like” to a Republican-controlled Senate, the GOP would follow suit. He fulfilled that threat in 2016, <a href="https://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland-nomination-soon">refusing to confirm Merrick Garland</a>, Barack Obama’s pick for the Supreme Court. </p>
<p>Keeping that vacancy open helped elect Donald Trump. Two people could hardly be more different, but the taciturn McConnell and the voluble Trump have at least one thing in common: They want power. </p>
<p>Trump had exercised his power with what often seems like reckless audacity, but McConnell’s 36-year Senate tenure is built on his calculated audacity.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Trump points at McConnell in a crowd while shaking his hand" src="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Trump and McConnell in February 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-shakes-hands-with-senate-majority-news-photo/646462182?adppopup=true">Bill Clark/CQ Roll Call</a></span>
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<h2>McConnell’s political rise</h2>
<p>It was audacious, back in 1977, to think that a wonky lawyer who had been disqualified from his only previous campaign for public office could defeat a popular two-term county executive in Louisville. </p>
<p>McConnell ran anyway. </p>
<p>It was audacious to think that a Republican could get the local labor council to endorse him in that race, but he got it, by <a href="https://www.npr.org/transcripts/729957825">leading the members to believe he would help them get collective bargaining for public employees</a>. </p>
<p>McConnell won the race. He didn’t pursue collective bargaining.</p>
<p>Seven years later, it was audacious to think that an urbanite who wore loafers to dusty, gravelly county fairs and lacked a compelling personality could unseat a popular two-term Kentucky senator, especially when he trailed by <a href="https://www.mcclatchydc.com/news/politics-government/congress/article151298992.html">40 points</a> in August. But McConnell won. </p>
<p>As soon as he won a second term in 1990, McConnell started trying to <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">climb the Senate leadership ladder</a>, facilitated in large measure by his willingness to be the point man on campaign finance issues, an area his colleagues feared. They reacted emotionally to this touchy issue; he studied it, owned it and moved higher in the leadership.</p>
<h2>Business, not service</h2>
<p>In politics, lack of emotion is usually a drawback. McConnell makes up for that by having command of the rules and the facts and a methodical attitude.</p>
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<a href="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black and white image of a younger Mcconnell" src="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">McConnell in 1992.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/close-up-of-sen-mitch-mcconnell-r-ky-in-april-1992-news-photo/674220092?adppopup=true">Laura Patterson/CQ Roll Call via Getty Images</a></span>
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<p>The recording on his home phone once said, “This is Mitch McConnell. You’ve reached my home. If this call is about business, please call my office.”</p>
<p>Business. Not something like “my service to you in the United States Senate,” but “business.” </p>
<p>This lack of emotion keeps McConnell disciplined. I am not the only person he has told, “The most important word in the English language is ‘focus,’ because if you don’t focus, you don’t get anything done.”</p>
<p>Five years ago, I spoke to the <a href="https://louisville.edu/admissions/cost-aid/scholarships/mentored-scholarships/mcconnell">McConnell Scholars</a>, the political-leadership program he started at the University of Louisville. One thank-you gift was a letter opener bearing two words: focus and humility. The first word was no surprise, because of McConnell’s well-known maxim; the second one intrigued me.</p>
<p>The director of the program, Gary Gregg, says adding “humility” was his idea. But it fits the founder. With his studied approach and careful reticence, McConnell is the opposite of bombast, and that surely helped him gain the Republican leader’s job and stay there. He has occasionally described his colleagues as prima donnas who <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">look in the mirror and see a president</a>, something he claims to have never done. </p>
<p>When the colleagues in your party caucus know you are focused on their interests and not your own, you can keep getting reelected leader, as McConnell has done without opposition every two years since 2006.</p>
<h2>McConnell’s Supreme Court</h2>
<p>McConnell’s caucus trusts him. When he saw Obama as an existential threat – someone who could bring back enough moderate Democrats to give the party a long-term governing majority – McConnell held the caucus together <a href="https://www.nytimes.com/2010/03/24/health/policy/24health.html">in opposition to Obamacare</a>, and Republicans used that as an issue to rouse their base in the 2010 midterm election.</p>
<p>Meanwhile, McConnell was working on the federal judiciary. <a href="https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html">He and his colleagues slow-walked</a> and filibustered Obama’s nominees, requiring “aye” votes from 60 of the 100 senators to confirm each one. The process consumed so much time that then-Majority Leader Harry Reid abolished the filibuster for nominations, except those to the Supreme Court. </p>
<p>That sped up the process, allowing Obama to appoint 323 judges, <a href="https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obstructionism-handed-judicial-vacancies-to-trump/">about as many</a> as George W. Bush. But Republicans’ additional delaying tactics still left 105 vacancies for Trump to fill.</p>
<p>When Democrats weakened the filibuster, McConnell <a href="https://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html">warned</a>, “You’ll regret this. And you may regret it a lot sooner than you think.”</p>
<p>Democrats may now concede that point. McConnell and Trump put nearly 200 judges on the federal courts, making them all the more a <a href="https://www.npr.org/2020/07/02/886285772/trump-and-mcconnell-via-swath-of-judges-will-affect-u-s-law-for-decades">white-male bastion of judicial conservatism</a>.</p>
<p>When <a href="https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html">Justice Antonin Scalia died in February 2016</a> and McConnell said <a href="https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248">the seat wouldn’t be filled until after the November election</a>, it was another case of calculated audacity.</p>
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<a href="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Schumer holds a sign reading, 'The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.'" src="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Sen. Chuck Schumer reminding McConnell of his ‘rule,’ September 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-minority-leader-chuck-schumer-holds-a-poster-with-a-news-photo/1275576995?adppopup=true">Alex Wong/Getty Images</a></span>
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<p>Democrats cried foul, but they were powerless to reverse his decision because Republicans stuck with him.</p>
<p>Trump’s 2016 victory preserved the Senate Republican majority, which then did away with the Supreme Court exception, allowing McConnell and his colleagues to install by simple majority vote the sort of Supreme Court justices they wanted: Neil Gorsuch, Brett Kavanaugh and <a href="https://www.cnn.com/2020/09/26/politics/amy-coney-barrett-supreme-court-nominee/index.html">Amy Coney Barrett</a>.</p>
<p>It is the Roberts Court, but it is also the McConnell Court.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">article</a> originally published Oct. 1, 2020.</em></p><img src="https://counter.theconversation.com/content/210587/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Al Cross does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mitch McConnell, who has announced he will step down from his role as Senate GOP leader, was an uncharismatic Kentucky lawyer who came to rule the Senate and remake the US Supreme Court.Al Cross, Professor and director emeritus, Institute for Rural Journalism, University of KentuckyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1860842022-07-04T15:05:53Z2022-07-04T15:05:53ZCan Americans be shielded from the U.S. Supreme Court?<figure><img src="https://images.theconversation.com/files/471894/original/file-20220630-13-7tc4el.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4543%2C2908&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court is seen behind security fencing on June 28, 2022. </span> <span class="attribution"><span class="source">(AP Photo/Mariam Zuhaib)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/can-americans-be-shielded-from-the-u-s--supreme-court" width="100%" height="400"></iframe>
<p>When United States <a href="https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html">Supreme Court Justice Antonin Scalia died</a> with 10 months left in President Barack Obama’s second term, Mitch McConnell, the Senate majority leader at the time, took the extreme step of <a href="https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now">refusing to hold hearings</a> for his nominated replacement, Merrick Garland. </p>
<p>McConnell hoped that a Republican might soon win the presidency and choose a different nominee. He got his wish. </p>
<p><a href="https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html">Despite getting three million fewer votes than Hillary Clinton</a>, Donald Trump won the presidency that November. Now, 18 months since his presidency ended, Trump’s impact on American life has probably never been more substantial as the Supreme Court he reshaped has pushed America in a sharply conservative direction. </p>
<h2>Crumbling democratic norms</h2>
<p>In fact, <a href="https://www.supremecourt.gov/about/biographies.aspx">five out of the nine justices</a> on the court this term were appointed by men who became president while losing the popular vote. Trump managed <a href="https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/">to appoint a third of the court during his four years in office, compared to Obama’s two appointments</a> in eight years. </p>
<p>The combination of crumbling democratic norms in the appointments process and an ideological court out of step with mainstream America raises questions of how the Supreme Court could be reformed.</p>
<p>These lifetime appointees have now jolted America <a href="https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf">on guns</a>, <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Christian prayer in public schools</a>, <a href="https://www.supremecourt.gov/orders/courtorders/062822zr1_9ol1.pdf">racial gerrymandering</a> of electoral districts and abortion rights. The conservative pivot shows no signs of stopping. </p>
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<a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941">The Supreme Court has overturned precedent dozens of times, including striking down legal segregation and reversing Roe</a>
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<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">his concurrence</a> in the case that overthrew <em>Roe v. Wade</em>, Justice Clarence Thomas also urged a re-examination of same-sex marriage, sodomy laws and contraceptive use. The court will rule on <a href="https://www.newyorker.com/news/daily-comment/the-supreme-court-appears-ready-finally-to-defeat-affirmative-action">affirmative action</a> next term. </p>
<p>With confidence in the U.S. Supreme Court at an <a href="https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx">all-time low</a>, many want something done to <a href="https://www.politico.com/f/?id=00000180-8d22-d337-a9cc-bfaa481a0000&nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=0000014e-f115-dd93-ad7f-f91513e50001&nlid=630318">check the court’s influence</a>. </p>
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<img alt="A woman in a parade holds a sign that reads Clarence Thomas and Ginni Thomas are coming after gay rights next" src="https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471895/original/file-20220630-15-mjkpkg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A reveller holds a sign referring to Supreme Court Justice Clarence Thomas and his wife, Ginni, as she marches down Fifth Avenue during the annual NYC Pride March in June 2022.</span>
<span class="attribution"><span class="source">(AP Photo/Mary Altaffer)</span></span>
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<h2>Suggestions for reform</h2>
<p>The U.S. Constitution gives Congress power over the size and structure of the judicial branch. Justices serve for life, barring impeachment, making removal difficult. Altering the size of the court, however, can be done by statute.</p>
<p>The constitution does not say there must be nine justices on the Supreme Court. In fact, there has been considerable <a href="https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf">variation in the number of justices</a> over the course of American history — between five and 10 justices comprised the court before Congress settled on nine in 1869. </p>
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<img alt="A grey-haired man wearing glasses in a suit with a red tie smiles as he walks past reporters." src="https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471899/original/file-20220630-23-kuhtue.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In this 2016 photo, Merrick Garland, Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court and now attorney general under Joe Biden, arrives for a meeting in Washington.</span>
<span class="attribution"><span class="source">(AP Photo/Pablo Martinez Monsivais)</span></span>
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<p>Many of these changes were undertaken for political reasons, and talk of changing the size of the court continued. Republicans’ refusal to consider Garland’s nomination reinvigorated interest in expanding it. In 2021, President Joe Biden <a href="https://www.whitehouse.gov/pcscotus/">created a commission</a> to evaluate a variety of reforms.</p>
<p><a href="https://www.rutgers.edu/news/what-court-packing">Court-packing</a> — expanding the size of the Supreme Court for purposes that could be viewed as partisan — is not the only reform option available. Introducing <a href="https://www.whitehouse.gov/wp-content/uploads/2021/06/Dixon-Letter-SC-commission-June-25-final.pdf">term limits</a> would bring the Supreme Court in line with most of the world’s high courts. </p>
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Read more:
<a href="https://theconversation.com/should-the-supreme-court-have-term-limits-159620">Should the Supreme Court have term limits?</a>
</strong>
</em>
</p>
<hr>
<p>Other structural reform proposals include <a href="https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html">having subsets</a> of justices hear each case or establishing a system <a href="https://www.yalelawjournal.org/feature/how-to-save-the-supreme-court">where judges rotate between the Supreme Court and lower federal courts</a>. Others aim for ideological balance by creating a set number of seats for Democratic and Republican nominees. </p>
<p>Some ideas are easier to implement than others. While expanding the size of the U.S. Supreme Court can be done by passing a law, other proposals require constitutional change. The difficult process of <a href="https://www.pewresearch.org/fact-tank/2018/04/12/a-look-at-proposed-constitutional-amendments-and-how-seldom-they-go-anywhere/">amending the U.S. Constitution</a> makes statutory reforms that much more attractive. </p>
<p><a href="https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/">Changes would require Democratic House and Senate majorities in favour of a new law as well as a majority of senators willing to set aside the filibuster to pass it</a>. The Democrats are short several votes on eliminating the filibuster, but the court’s recent decisions might help them make gains in this fall’s mid-term elections. </p>
<h2>Ideologically motivated</h2>
<p>Why does the court’s size matter? When justices are neutral umpires <a href="https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process#:%7E:text=I%20will%20be%20open%20to,not%20to%20pitch%20or%20bat.">calling balls and strikes</a>, their number is not so important. </p>
<p>But when decisions are seen as ideologically motivated, <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">judicial legitimacy</a> — the key tool the court has to enforce its decisions — is threatened. Restoring ideological balance to the Supreme Court is a means to preserve its institutional legitimacy.</p>
<p>Can the court change direction? Biden expressed concern that court-packing could backfire by making it even more politicized. However, reforms that bring Supreme Court decisions <a href="https://doi.org/10.1515/for-2022-2043">in line with public opinion</a> should increase legitimacy of what used to be the <a href="https://news.gallup.com/poll/355124/americans-trust-government-remains-low.aspx">most trusted branch</a> of American government. </p>
<figure class="align-left ">
<img alt="A man with grey hair and glasses speaks." src="https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471901/original/file-20220630-22-5d8a8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">McConnell speaks with reporters following a closed-door caucus lunch at the Capitol in Washington.</span>
<span class="attribution"><span class="source">(AP Photo/J. Scott Applewhite)</span></span>
</figcaption>
</figure>
<p>Even if the court is expanded, the nomination process for justices has become open warfare between the Democrats and Republicans. With mid-term elections ahead, McConnell has indicated that, if Republicans win a majority in the Senate, they would treat a nomination from Biden in 2023 or 2024 as they did Obama’s in 2016, <a href="https://www.ny1.com/nyc/all-boroughs/news/2021/06/14/biden-mcconnell-supreme-court">keeping a seat vacant</a> in the hopes of a new Republican president.</p>
<h2>An ominous future</h2>
<p>Democracy rests in large part on the perception that political institutions are doing their jobs fairly and for the common welfare. </p>
<p>There have been periods of American history where one branch of government has sunk beneath the others in their perceived legitimacy. But with ratings of Congress and the president so low, having the legitimacy of the Supreme Court sink as well brings <a href="https://news.gallup.com/poll/5392/trust-government.aspx">faith in the overall system</a> to dangerously low levels.</p>
<p>Among other worries, if a court that most view as biased is called upon to decide the 2024 presidential election, the remaining pieces of American democracy could crumble fast.</p><img src="https://counter.theconversation.com/content/186084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The combination of crumbling democratic norms in the U.S. Supreme Court appointments process and an ideological court out of step with mainstream America raises questions of how it could be reformed.Matthew Lebo, Professor and Chair, Department of Political Science, Western UniversityEllen Key, Professor, Department of Government and Justice Studies, Appalachian State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1596862021-05-24T12:11:06Z2021-05-24T12:11:06ZThe obscure, unelected Senate official whose rulings can help – or kill – a bill’s chance to pass<figure><img src="https://images.theconversation.com/files/401349/original/file-20210518-23-79w529.jpeg?ixlib=rb-1.1.0&rect=24%2C24%2C5429%2C3523&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Bills have a long journey that includes going through the parliamentarian's office in the Senate. Here, a corridor in the Senate.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/capitol-building-senate-corridor-in-washington-dc-royalty-free-image/889108426?adppopup=true">dkfielding/iStock/Getty Images Plus</a></span></figcaption></figure><p>Senate parliamentarian Elizabeth MacDonough raised the profile of her largely invisible role in February 2021 when she <a href="https://www.nytimes.com/2021/02/25/us/politics/federal-minimum-wage.html">ruled that Senate Democrats could not include a hike in the minimum wage</a> to $15 per hour in the $1.9 trillion COVID-19 relief bill ultimately <a href="https://www.cnbc.com/2021/03/11/biden-1point9-trillion-covid-relief-package-thursday-afternoon.html">passed in March</a>. Democrats had aimed to <a href="https://theconversation.com/why-using-reconciliation-to-pass-bidens-covid-19-stimulus-bill-violates-the-original-purpose-of-the-process-156195">pass the legislation via what’s called a budget reconciliation process</a>. This crucial category consists of bills on taxes or spending – and MacDonough ruled the wage hike didn’t meet that requirement. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A brown-haired woman of middle age, smiling" src="https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=738&fit=crop&dpr=1 600w, https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=738&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=738&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=928&fit=crop&dpr=1 754w, https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=928&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/401287/original/file-20210518-21-izbgnf.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=928&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Elizabeth MacDonough, Senate parliamentarian.</span>
<span class="attribution"><a class="source" href="https://www.govinfo.gov/content/pkg/GPO-PICTDIR-115/pdf/GPO-PICTDIR-115-7.pdf">Govinfo.gov</a></span>
</figcaption>
</figure>
<p>Progressive Democrats went through the roof. <a href="https://www.sanders.senate.gov/press-releases/news-sanders-announces-15-minimum-wage-amendment-to-reconciliation-bill-calls-for-senate-democrats-to-ignore-parliamentarian/">Sen. Bernie Sanders said</a>, “I regard it as absurd that the parliamentarian, a Senate staffer elected by no one, can prevent a wage increase for 32 million workers.” </p>
<p>But MacDonough was just carrying out her procedural duties to advise the Senate leaders about what the body’s rules and precedents allow – and what they don’t. And as the author of two books about Congress – “<a href="https://lawcat.berkeley.edu/record/493842?ln=en">Congressional Practice and Procedure</a>” and “<a href="https://scholarworks.law.ubalt.edu/fac_books/100/">The Polarized Congress</a>” – I know that the parliamentarian’s rulings can be key to passage of legislation.</p>
<h2>Low-key office</h2>
<p>A century ago, the Senate would informally assign a particular Senate “clerk” to specialize in advice on proper phrasing of rulings and motions. </p>
<p>The first <a href="https://www.senate.gov/artandhistory/history/minute/First_Official_Parliamentarian.htm">Senate parliamentarian, Charles L. Watkins</a>, began serving in the official position in 1935 and continued until 1964. Such a higher-status position was necessitated by the trend toward increasing complexity and formality of Senate floor action. This trend was the Senate developing from its classic era as a “gentleman’s club” <a href="https://www.nytimes.com/2014/12/05/upshot/demise-of-the-southern-democrat-is-now-nearly-compete.html">governed by conservative Southern Democrats</a> to the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/legacy.htm">post-Watergate era of procedural reforms</a> <a href="https://www.politico.com/magazine/story/2018/05/26/congress-broke-american-politics-218544">and party polarization</a>. <a href="https://www.brookings.edu/testimonies/the-history-of-the-filibuster/">Filibusters gradually changed from virtually unknown to commonplace</a>, and these required their own elaborate and formal procedures. </p>
<p>Since then, the parliamentarian role has expanded as a result of the increasing complexity and formality of action on the Senate floor, and the apparent unwillingness of most senators to study for themselves the nuances of often-obscure procedural precedents. </p>
<p>For example, when a bill like the <a href="https://www.theguardian.com/us-news/2017/dec/19/donald-trump-tax-bill-plan-house-approves-senate">Trump tax cut of December 2017</a> runs out of allocated time on the floor, the remaining amendments fly through with only two minutes each of consideration, and senators must defer to the parliamentarian to master the applicable procedure for each of those amendments. </p>
<p>The <a href="https://thehill.com/policy/finance/365691-senate-parliamentarian-rules-against-gop-tax-bills-name">parliamentarian even ruled against naming that bill the Tax Cuts and Jobs Act</a>, since the provision did not influence spending or revenue, as each provision must under Senate budget rules. </p>
<p>The parliamentarian is a nonpartisan position; the office includes a chief parliamentarian and several assistant parliamentarians. When there is a vacancy, <a href="https://constitutioncenter.org/interactive-constitution/blog/who-is-the-senate-parliamentarian-and-what-does-she-do">the chief parliamentarian is chosen</a> by the Senate majority leader from the assistant parliamentarians. </p>
<p>In 2012, when she was appointed by Democratic Senate Majority Leader Harry Reid, MacDonough broke the glass ceiling and <a href="https://www.cnn.com/2012/01/31/politics/senate-female-parliamentarian">became the first female parliamentarian</a>. </p>
<p>Despite being nonpartisan, <a href="https://www.lexology.com/library/detail.aspx?g=2146f1ec-3458-4d9b-a13a-e527ad89c29d">the parliamentarian can be fired by the Senate majority leader</a>. Historically, though, parliamentarians are regularly retained despite changes in Senate majority party. MacDonough served a Democratic Senate, then a Republican Senate, and now a Democratic Senate. </p>
<p>In an isolated occasion in <a href="https://www.nytimes.com/2001/05/08/us/rules-keeper-is-dismissed-by-senate-official-says.html">2001, parliamentarian Robert Dove was fired by Republican Senate Majority Leader Trent Lott for rulings on reconciliation</a> that didn’t sit well with the GOP leadership. The post was then filled by Dove’s <a href="https://www.govtrack.us/congress/bills/112/sres359/text">widely respected deputy, Alan Frumin</a>, and the office continued to be nonpartisan. </p>
<p>When Rep. Ilhan Omar, a Minnesota Democrat, called for MacDonough’s firing over her ruling against reconciliation for the minimum wage, <a href="https://www.washingtonpost.com/archive/politics/2001/05/08/key-senate-official-loses-job-in-dispute-with-gop/e2310021-0f14-4667-a261-54e6c033207c/">she had no takers in the Senate</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rep. Ilhan Omar wearing a blue headcovering, in front of the U.S. Capitol." src="https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/401350/original/file-20210518-13-14xjr6b.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rep. Ilhan Omar, a Democrat from Minnesota, said the Senate parliamentarian should be fired after ruling the minimum wage hike shouldn’t be in a COVID-19 relief bill.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-ilhan-omar-speaks-during-a-news-conference-to-discuss-news-photo/1231650472?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>Power over legislation’s prospects</h2>
<p>As parliamentarian, MacDonough is charged with more than just ruling what can go into reconciliation bills. </p>
<p>In advising the Senate presiding officer, the parliamentarian rules on countless procedural issues, from what provisions can go in an appropriation bill to what amendments are relevant enough to be offered to a bill when debate has already ended. </p>
<p>During Senate floor sessions, the parliamentarian or an assistant parliamentarian is present, sitting near the presiding officer and answering questions about procedure. </p>
<p>The parliamentarian <a href="https://votesmart.org/education/how-a-bill-becomes-law">refers newly introduced bills to the committee</a> that handles the bill’s main subject. Referral can greatly affect a bill’s prospects because different committees may be more or less favorable to the bill’s goals. </p>
<p>For example: A climate change bill may have one fate if drafted so that the parliamentarian sends it to the Commerce Committee. That could happen if the bill was written to emphasize regulation of commerce. The bill could take another course if written for referral to the Energy Committee. </p>
<p>Adding to bill-writers’ calculation: The Commerce Committee may have a majority to send its bill to passage before the full Senate, while the Energy Committee may not. So, whether a bill makes progress out of committee means its drafter must maneuver to land the bill before a particular committee. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small plane flying over a coastal area of the Alaska National Wildlife Refuge." src="https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/401352/original/file-20210518-15-o2xgja.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Did a proposal to open oil drilling in the Arctic National Wildlife Refuge – a portion of which is shown here – belong in a tax bill? The Senate parliamentarian ruled in 2017 that it did.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ArcticRefugeDrilling/935b987acc6e40359dfb972dc2dc4fe8/photo?Query=drilling%20arctic%20national%20wildlife%20refuge&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=59&currentItemNo=9">U.S. Fish and Wildlife Service via AP</a></span>
</figcaption>
</figure>
<h2>Reconciliation’s rules</h2>
<p>These days, MacDonough’s most striking rulings do concern reconciliation bills. In a polarized Senate, <a href="https://www.usatoday.com/story/news/politics/2021/03/20/filibuster-how-got-senates-most-contentious-rule/4716702001/">where the majority party cannot muster 60 votes to end a filibuster</a>, one of the only ways to get legislation passed is to attach – or “ride” – controversial measures or provisions through the Senate on a reconciliation bill.</p>
<p>Although a minimum wage increase would have some indirect budget implications, MacDonough ruled that it would be only incidental to the COVID-19 relief bill. Conversely, <a href="https://www.nytimes.com/live/2021/04/05/us/biden-news-today">she has ruled that</a> an infrastructure bill could be considered as a reconciliation bill, although individual parts in an infrastructure bill might have to be stricken – depending on MacDonough’s rulings on them.</p>
<p>[<em>Understand what’s going on in Washington.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-most">Sign up for The Conversation’s Politics Weekly</a>.]</p>
<p>In <a href="https://www.nytimes.com/2017/12/01/us/politics/senate-tax-bill-debate-vote.html">2017, when the Senate passed the Trump tax cut</a> as a reconciliation bill, MacDonough allowed into the bill Republican provisions <a href="https://www.adn.com/politics/2017/10/19/u-s-senate-passes-bill-that-offers-a-chance-to-open-arctic-national-wildlife-refuge-to-drilling/">to open the Arctic National Wildlife Refuge</a> in Alaska to oil drilling, and to <a href="https://www.washingtonpost.com/business/economy/sen-paul-plans-amendment-to-gut-obamacare-in-tax-bill-testing-gop-unity/2017/11/14/f95066c6-c94e-11e7-8321-481fd63f174d_story.html">eliminate the tax penalty</a> for the Affordable Care Act’s individual mandate. Both of these provisions affected the budget.</p>
<p>On the other hand, during the Senate’s 2017 debate over the American Health Care Act, also being considered as a reconciliation bill, <a href="https://thehill.com/policy/healthcare/343551-parliamentarian-deals-setback-to-gop-repeal">she ruled that</a> language eliminating funding for Planned Parenthood and language banning abortion coverage in insurance marketplaces were not appropriate for inclusion in the legislation.</p>
<h2>Nuclear option</h2>
<p>The Senate majority does have a way in the most extreme circumstances to bypass a parliamentarian’s ruling it doesn’t like. It’s called the “nuclear option” and in general, it means the majority can alter Senate procedure by changing the number of votes required to end debate and thereby get to approve a matter. </p>
<p>In <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html">2013, the Senate Democratic majority did just that</a>, allowing executive and lower-level judicial nominations to have debate cut off, and to be approved, by 51 votes, not the normal 60 votes to cut off debate. </p>
<p>In 2017, the Senate <a href="https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html">Republican majority did the same for Supreme Court nominations</a>. </p>
<p>The parliamentarian advises on procedure for nominations because there are many points of overlap with consideration of legislation. In a 2018 speech, <a href="https://apnews.com/article/bills-impeachments-bernie-sanders-electoral-college-minimum-wage-8893a3f95038cac51ba66066554bcd20">MacDonough called those two uses of the nuclear option in 2013 and 2017</a> a “stinging defeat that I tried not to take personally.” The parliamentarian stands for regular order, which these moves were not.</p>
<p>What may show up on the parliamentarian’s plate later this year or next? </p>
<p>One possibility: President Biden could try to pass a climate control bill by majority vote, as a reconciliation bill. From his decades of Senate experience, he knows the bill must fit the parliamentarian’s criteria to get through by 51 votes. </p>
<p>So his administration might offer the Senate a bill on climate in the form of a carbon tax. The bill would be proposed as a tax bill, hence a budget-related bill that gets through the Senate by the 51-vote reconciliation procedure.</p><img src="https://counter.theconversation.com/content/159686/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Tiefer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Senate has a lot of rules, and its parliamentarian interprets what those rules allow – and what they don’t. That can mean a bill will face either huge obstacles, or very few obstacles to passage.Charles Tiefer, Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601422021-05-10T12:32:26Z2021-05-10T12:32:26ZStates pick judges very differently from US Supreme Court appointments<figure><img src="https://images.theconversation.com/files/399326/original/file-20210506-14-1hfx412.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2658&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Political pressure is focusing on the makeup of the U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-stands-on-december-11-2020-in-news-photo/1230073841">Stefani Reynolds/Getty Images</a></span></figcaption></figure><p>The future of the U.S. Supreme Court is <a href="https://theconversation.com/supreme-court-losing-luster-in-publics-eyes-55802">politically fraught</a>. </p>
<p>The <a href="https://theconversation.com/3-ways-a-6-3-supreme-court-would-be-different-146558">court’s partisan balance</a> has <a href="https://theconversation.com/liberals-in-congress-and-the-white-house-have-faced-a-conservative-supreme-court-before-154782">long</a> been a <a href="https://theconversation.com/partisan-supreme-court-battles-are-as-old-as-the-united-states-itself-146657">hot-button issue</a>, and both Democrats and Republicans can correctly claim that the other party bears at least <a href="https://www.npr.org/2017/04/04/522598965/going-nuclear-how-we-got-here">some blame</a> for the <a href="https://theconversation.com/is-the-supreme-courts-legitimacy-undermined-in-a-polarized-age-99473">politicization of the federal judiciary</a>.</p>
<p>In 2016, appointments to the U.S. Supreme Court became even more overtly political when conservative Justice <a href="https://theconversation.com/former-clerk-on-justice-antonin-scalia-and-his-impact-on-the-supreme-court-55211">Antonin Scalia</a> died and the <a href="https://www.youtube.com/watch?v=YqRJXVXcVeE">U.S. Senate’s Republican majority refused</a> to let President Barack Obama <a href="https://theconversation.com/filling-the-supreme-court-vacancy-lessons-from-1968-55010">fill the vacancy</a>. </p>
<p>This delay ultimately gave soon-to-be President Donald Trump the chance to seat conservative <a href="https://theconversation.com/who-is-neil-gorsuch-72142">Neil Gorsuch</a> as Scalia’s replacement. Four years later, though, <a href="https://thehill.com/homenews/senate/527448-mcconnell-pushed-trump-to-nominate-coney-barrett-on-the-night-of-ginsburgs">Republicans rushed</a> to <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">fill the vacancy</a> left by the death of liberal Justice <a href="https://theconversation.com/ginsburgs-legal-victories-for-women-led-to-landmark-anti-discrimination-rulings-for-the-lgbtq-community-too-146546">Ruth Bader Ginsburg</a> less than two months before a presidential election.</p>
<p>Now, with Democrats in control of the White House and – barely – the U.S. Senate, some within the party have been <a href="https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4508">calling for President Joe Biden to add more justices to the U.S. Supreme Court</a> in hopes of <a href="https://www.usatoday.com/story/opinion/2020/10/29/republicans-packed-supreme-court-expand-repair-damage-column/6054522002/">reversing</a> Republican <a href="https://theconversation.com/mitch-mcconnells-legacy-is-a-conservative-supreme-court-shaped-by-his-calculated-audacity-147062">efforts</a> to <a href="https://www.theguardian.com/us-news/2020/apr/28/donald-trump-judges-create-new-conservative-america-republicans">enshrine conservatism</a> within the courts.</p>
<p>In response to those calling for reform, Biden has created the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states/">Presidential Commission on the Supreme Court of the United States</a>, whose mission “is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.”</p>
<p>This commission – which includes <a href="https://news.bloomberglaw.com/us-law-week/bidens-supreme-court-commission-whos-on-it-and-why-explained">scholars, lawyers and political advisers</a> – could <a href="https://theconversation.com/supreme-court-polarization-is-not-inevitable-just-look-at-europe-99356">look at top courts overseas for ideas</a> about how to <a href="https://theconversation.com/unlike-us-europe-picks-top-judges-with-bipartisan-approval-to-create-ideologically-balanced-high-courts-146550">depoliticize</a> the U.S. Supreme Court. But its members could also learn lessons from the states, many of which have already taken steps to insulate their judicial branches from partisan politics.</p>
<p><iframe id="z290V" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/z290V/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>State court lessons for depoliticization</h2>
<p>Following the model set by the U.S. Constitution, <a href="https://www.lindenwood.edu/files/resources/stuteville.pdf">many state constitutions</a> initially called for governors to appoint state judges for life with the advice and consent of the state’s Senate. Over time, many felt that this system empowered governors to award judgeships based upon party loyalty <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">rather than judicial temperament and fair-mindedness</a>. </p>
<p>In the mid-1800s, <a href="https://www.history.com/news/andrew-jackson-populism">populism</a> swept the country. This movement toward giving power to the public prompted several states to amend their state constitutions to allow for the <a href="http://www.judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm">popular election of judges</a>. </p>
<p>This did not solve the problem of judicial politicization, as <a href="http://judicialselection.us/uploads/documents/Berkson_1196091951709.pdf">judges were often beholden to the political machines that helped them get elected</a>. As such, the public began to perceive elected judges as both partisan and corrupt, and turned against the courts. For example, <a href="https://core.ac.uk/download/pdf/217044329.pdf">between 1918 to 1940</a> only two Missouri Supreme Court judges were reelected.</p>
<p>In <a href="http://judicialselection.us/judicial_selection/reform_efforts/formal_changes_since_inception.cfm?state=">1940</a>, Missouri became <a href="https://docs.lib.purdue.edu/cgi/viewcontent.cgi?article=2147&context=open_access_dissertations">the first state</a> to adopt what is now called the “<a href="https://www.britannica.com/topic/Missouri-Plan">Missouri Plan</a>” for selecting judges, which involves two elements: “assisted appointments” and nonpartisan “retention elections.” </p>
<p>Typically, for assisted appointments, a nonpartisan commission reviews candidates for state judgeships, creating a list of potential nominees <a href="http://www.judicialselection.us/uploads/documents/ms_descrip_1185462202120.pdf">based on merit</a>. The governor fills vacancies on the bench by choosing from this predetermined list. In such a system, <a href="http://www.judicialselection.us/uploads/Documents/Judicial_Merit_Charts_0FC20225EC6C2.pdf">the governor’s pick does not usually need to be confirmed by the state legislature</a> because the pick has already been vetted by the nonpartisan commission. </p>
<p>For retention elections, judges face no opponent and are listed on the ballot <a href="https://www.courts.mo.gov/page.jsp?id=297">without political party designation</a>. Voters are simply asked whether an incumbent judge should remain in office, which provides an opportunity to oust judges who regularly make unpopular decisions. Retention elections are often held in states that use assisted appointments. However, in some states that still elect their judges using partisan elections, such as <a href="https://ballotpedia.org/Judicial_selection_in_Illinois">Illinois</a>, nonpartisan retention elections are used when it’s time for reelection.</p>
<p>Today, <a href="https://ballotpedia.org/Assisted_appointment_(judicial_selection)">more than 30 states</a> use some form of assisted appointments. <a href="https://ballotpedia.org/Retention_election">More than 20 states</a> use some variation of retention elections. More than a dozen states use both in some capacity. Notably, both “red” states and “blue” states have adopted one or both of these reforms, as have many “purple” states.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men shake hands" src="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=540&fit=crop&dpr=1 754w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=540&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/399327/original/file-20210506-14-1usojgq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=540&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court sparked a partisan fight.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ObamaSupremeCourt/7f2430eea2f8409cbe62880a1039cbe3/photo">AP Photo/Pablo Martinez Monsivais</a></span>
</figcaption>
</figure>
<h2>Showing the way forward?</h2>
<p><a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3841&context=mlr">Advocates of Missouri’s nonpartisan court plan</a> argue that the reforms have been a <a href="https://www.courts.mo.gov/page.jsp?id=297">success</a>. According to <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3830&context=mlr">Sandra Day O'Connor</a>, <a href="https://www.britannica.com/biography/Sandra-Day-OConnor">the first woman to serve on the U.S. Supreme Court</a>, “the ‘Show-Me State’ … has shown the nation how we can do a better job of selecting our judges.”</p>
<p>If the federal government adopted assisted appointments, campaign tactics like Trump’s 2016 <a href="https://www.youtube.com/watch?v=wd06ZjhEEEk">promise to appoint pro-life, conservative judges</a> would be less <a href="https://www.washingtonpost.com/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/">relevant</a>, because presidents would be limited in whom they could nominate for a court vacancy.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Additionally, if voters could remove U.S. Supreme Court justices whose opinions <a href="https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-court-decision-on-gay-marriage-rights">differ</a> from that of the <a href="https://www.nbcnews.com/feature/nbc-out/support-gay-marriage-reaches-all-time-high-survey-finds-n1244143">majority</a> of Americans, politicians might not feel as pressured to block the appointment of a <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">particular justice for partisan reasons</a>, as the judge would serve on the bench for only as long as they retained <a href="https://theconversation.com/are-you-suddenly-interested-in-the-supreme-court-youre-not-alone-99657">public support</a>.</p><img src="https://counter.theconversation.com/content/160142/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many states have found ways to remove partisan politics from their court systems.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1560932021-03-02T20:09:12Z2021-03-02T20:09:12ZMost US states don’t have a filibuster – nor do many democratic countries<figure><img src="https://images.theconversation.com/files/387054/original/file-20210301-15-5bqoie.jpg?ixlib=rb-1.1.0&rect=10%2C0%2C2385%2C1346&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Sen. Chris Murphy, a Connecticut Democrat, launches a filibuster in 2016.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GunsCongress/7f511e16bf844b0b87aa3085145c45ae/photo">Senate Television via AP</a></span></figcaption></figure><p>As the U.S. Senate proceeds with its business, split 50-50 between Republicans on one side and Democrats and independents on the other, lawmakers and the public at large are concerned about the <a href="https://www.ncsl.org/blog/2016/06/29/ahoy-the-future-of-the-filibuster.aspx">future of the filibuster</a>.</p>
<p>Under the rules of the U.S. Senate, if just one lawmaker doesn’t want a bill to progress, they can attempt to <a href="https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm">delay its passage indefinitely</a> by giving a <a href="https://www.youtube.com/watch?v=BL-Jg7CyqLQ">principled speech</a>, or even just reading “<a href="https://www.youtube.com/watch?v=0HJuaQL3KRI">Green Eggs and Ham</a>,” as Ted Cruz did in 2013. A supermajority of three-fifths of the senators, or 60 of the 100, is required to stop the filibuster – or signal that one would not succeed – and proceed to a vote.</p>
<p>As a result of the current Senate split, the majority party – the 48 Democrats and two independents who generally caucus with them, plus <a href="https://theconversation.com/what-does-the-vice-president-do-152467">Vice President Kamala Harris</a> – cannot unilaterally decide to block filibusters and end debate on a bill. This effectively prevents most bills from ever being voted on without a sizable number of Republicans also agreeing to end debate.</p>
<p>Many critics have <a href="https://theconversation.com/trumps-right-about-one-thing-the-us-senate-should-end-its-60-vote-majority-88761">called for the filibuster’s elimination</a>. Its continued use was briefly in question during <a href="https://www.politico.com/news/2021/02/03/schumer-and-mcconnell-agree-to-organizing-resolution-for-50-50-senate-465444">negotiations</a> between the parties over how to run an evenly split Senate. But the <a href="https://thehill.com/homenews/senate/535887-mcconnell-sinema-told-me-she-wont-nix-the-filibuster">filibuster has survived</a>, and it will likely continue to be a <a href="https://theconversation.com/fact-check-us-is-the-filibuster-one-of-the-major-obstacles-ahead-for-joe-biden-154099">major obstacle</a> to passing legislation.</p>
<p>As a comparative politics <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">scholar</a>, I have come to the conclusion that because many democratic constitutions already include so many other checks and balances, giving the <a href="https://www.brennancenter.org/our-work/research-reports/filibuster-reform-curbing-abuse-prevent-minority-tyranny-senate">minority party</a> veto power over widely supported legislation is <a href="https://www.newyorker.com/news/daily-comment/our-democracys-unnecessary-stupidities">unnecessary</a>, which is why <a href="https://www.cga.ct.gov/2009/rpt/2009-R-0249.htm">most U.S. states</a> and most <a href="https://www.loc.gov/law/help/parliamentary-procedures/supermajority.php">democratic countries</a> do not allow their legislators to filibuster. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Texas state Sen. Wendy Davis filibusters an anti-abortion bill in 2013" src="https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/387055/original/file-20210301-22-1y5ozgj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In June 2013, Texas State Sen. Wendy Davis filibustered an anti-abortion bill. While a version of the bill was eventually enacted, in 2016, the U.S. Supreme Court struck down the abortion restrictions as unconstitutional.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionLaws/ae61fc27b39b42e29985be6035f76e1f/photo">AP Photo/Eric Gay</a></span>
</figcaption>
</figure>
<h2>Plenty of checks and balances</h2>
<p>According to Senate Minority Leader Mitch McConnell, the filibuster ensures “<a href="https://mobile.twitter.com/leadermcconnell/status/1354187035272241153">that slim majorities can’t ram through half-baked ideas</a>.” But even without the filibuster, it’s actually quite hard to pass legislation in the U.S., thanks to the Constitution’s robust <a href="https://www.law.cornell.edu/wex/separation_of_powers_0">separation of powers</a>.</p>
<p>Bills need to pass both chambers of Congress with majority support, which can be a <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/11/why-does-congress-have-such-a-hard-time-passing-laws-lets-blame-the-constitution/">huge hurdle</a>. Founder <a href="https://www.whitehouse.gov/about-the-white-house/presidents/james-madison/">James Madison</a> argued that having two chambers was beneficial, as it prevents the passage of “<a href="https://avalon.law.yale.edu/18th_century/fed62.asp">improper acts of legislation</a>.” Not every government has two legislative chambers, however. There is only one chamber in <a href="https://nebraskalegislature.gov/FloorDocs/Current/PDF/Constitution/constitution.pdf">Nebraska’s legislature</a> – just like the national legislatures of <a href="https://www.constituteproject.org/ontology/Denmark?lang=en">Denmark</a>, <a href="https://www.constituteproject.org/ontology/Finland?lang=en">Finland</a>, <a href="https://www.constituteproject.org/ontology/Iceland?lang=en">Iceland</a>, <a href="https://www.constituteproject.org/ontology/Luxembourg?lang=en">Luxembourg</a>, <a href="https://www.constituteproject.org/ontology/New_Zealand?lang=en">New Zealand</a> and <a href="https://www.constituteproject.org/ontology/Norway?lang=en">Norway</a>.</p>
<p>Even if the bill has the support of the majority in both the Senate and the House, it still faces a potential presidential veto, which can be <a href="https://crsreports.congress.gov/product/pdf/RS/RS22654">overridden</a> only by a two-thirds supermajority in both congressional chambers. Yet, at the state level, many legislatures can <a href="http://knowledgecenter.csg.org/kc/system/files/4.4.2019.pdf">override vetoes by their governor</a> with a simple majority, which is the same threshold needed to override presidential vetoes in <a href="https://www.constituteproject.org/countries/Europe/Estonia?lang=en">Estonia</a>, <a href="https://www.constituteproject.org/ontology/France?lang=en">France</a> and <a href="https://www.constituteproject.org/ontology/Italy?lang=en">Italy</a>. Other democracies, such as <a href="https://www.constituteproject.org/countries/Europe/Austria?lang=en">Austria</a> and <a href="https://www.constituteproject.org/countries/Europe/Germany?lang=en">Germany</a>, don’t even have a presidential veto.</p>
<p>If a bill somehow gets passed by Congress and is signed by the president, the Supreme Court can still declare it unconstitutional and strike the law off the books. Not all democracies give their highest court this power: The Constitution of <a href="https://www.constituteproject.org/ontology/Netherlands_the?lang=en">the Netherlands</a>, for instance, explicitly prohibits this. In <a href="https://www.constituteproject.org/ontology/Switzerland?lang=en">Switzerland</a>, the highest court can strike down laws passed by the cantons, which are similar to U.S. states, but cannot overturn federal legislation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Strom Thurmond set a filibuster record in 1957" src="https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=474&fit=crop&dpr=1 600w, https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=474&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=474&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=596&fit=crop&dpr=1 754w, https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=596&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/387056/original/file-20210301-13-bthyr8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=596&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In August 1957, Sen. Strom Thurmond, then a South Carolina Democrat, attempted to prevent the passage of the Civil Rights Act by filibustering for a record 24 hours and 18 minutes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senator-strom-thurmond-is-mobbed-by-reporters-as-he-steps-news-photo/514697652">Bettman via Getty Images</a></span>
</figcaption>
</figure>
<h2>The creation and weakening of the filibuster</h2>
<p>McConnell argues that <a href="https://www.nytimes.com/2019/08/22/opinion/mitch-mcconnell-senate-filibuster.html">the filibuster plays a crucial role in our constitutional order</a>. Yet, it’s important to point out that <a href="https://newrepublic.com/article/112606/filibuster-unconstitutional">the founders did not include the filibuster in the U.S. Constitution</a>, and <a href="https://www.brookings.edu/testimonies/the-history-of-the-filibuster/">the filibuster became part of the Senate’s rules only by mistake</a> when then-<a href="https://theconversation.com/what-does-the-vice-president-do-152467">Vice President</a> <a href="https://www.senate.gov/about/officers-staff/vice-president/VP_Aaron_Burr.htm">Aaron Burr</a> recommended that the Senate clean up its rulebook by removing redundant language. </p>
<p><a href="https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-104/pdf/GPO-HPRACTICE-104-40.pdf">One of the rules</a> that was axed <a href="https://www.govinfo.gov/content/pkg/CHRG-111shrg62210/pdf/CHRG-111shrg62210.pdf">in 1806 at Burr’s behest</a> empowered a simple majority to cut off debate. Eventually, <a href="https://www.history.com/topics/us-government/history-of-the-filibuster">this mistake was realized and exploited when the Senate endured its first filibuster in 1837</a>. </p>
<p>Since that time, there have been many efforts to restrict the use of the filibuster. A frustrated Woodrow Wilson – the only U.S. president to have earned a Ph.D. in political science – once noted that the “<a href="https://www.senate.gov/about/origins-foundations/idea-of-the-senate/1926Rogers.htm">Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action</a>.” In <a href="https://www.senate.gov/artandhistory/history/minute/Cloture_Rule.htm">1917</a>, he successfully curbed the use of the filibuster by pressuring the Senate to adopt a rule that allowed for a two-thirds supermajority to end debate. </p>
<p>In <a href="https://www.congress.gov/bill/93rd-congress/house-bill/7130">1974</a>, the Senate further limited the use of the filibuster by agreeing that when using a process called “<a href="https://www.vox.com/policy-and-politics/2016/11/23/13709518/budget-reconciliation-explained">reconciliation</a>” to pass a budget-related bill, <a href="https://budget.house.gov/publications/fact-sheet/budget-reconciliation-basics#Reconciliation8">debate in the Senate is limited to 20 hours</a>. Effectively this means that reconciliation bills cannot be filibustered, as debate cannot continue in perpetuity. </p>
<p>After the maximum allotted time for debate has elapsed, reconciliation bills require only the approval of <a href="https://www.brookings.edu/blog/fixgov/2017/07/24/what-to-expect-with-a-reconciliation-bill/">a simple majority</a>. This process was used in 2017 to pass <a href="https://www.congress.gov/bill/115th-congress/house-bill/1">Donald Trump’s tax cuts</a> with only <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=1&vote=00303">51 votes</a>. This same process is <a href="https://theconversation.com/why-using-reconciliation-to-pass-bidens-covid-19-stimulus-bill-violates-the-original-purpose-of-the-process-156195">being used</a> to try and pass President Joe Biden’s coronavirus relief package.</p>
<p>In 1975, senators <a href="https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm">reduced the two-thirds supermajority</a> required to end debate to the present <a href="https://www.rules.senate.gov/rules-of-the-senate">three-fifths</a>, thereby creating the current 60-vote threshold.</p>
<p>In 2013, the filibuster was again weakened when Democrats, then in the majority, <a href="https://www.politico.com/story/2013/11/harry-reid-nuclear-option-100199">eliminated its use on all presidential nominees except those to the Supreme Court</a>, in response to the <a href="https://www.theguardian.com/world/2013/nov/19/judge-appointment-blocked-senate-republicans">repeated Republican obstruction</a> of Barack Obama’s nominees. </p>
<p>In 2017, Republicans, having retaken the Senate, went one step farther by <a href="https://www.nbcnews.com/politics/congress/nuclear-option-what-it-why-it-matters-n742076">eliminating the use of the filibuster on Supreme Court nominees</a>. All three of Trump’s nominees to the nation’s highest court – <a href="https://www.wibw.com/content/news/Gorsuch-on-path-to-confirmation-as-Senate-rips-up-own-rules-418650203.html">Neil Gorsuch</a>, <a href="https://www.c-span.org/video/?c4753945/senate-votes-50-48-confirm-brett-kavanaugh-supreme-court">Brett Kavanaugh</a> and <a href="https://www.wrcbtv.com/story/42819606/breaking-us-senate-votes-5248-to-confirm-amy-coney-barrett-to-supreme-court">Amy Coney Barrett</a> – were confirmed with fewer than 60 votes.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Amy Coney Barrett was confirmed to the Supreme Court by a vote of 52 to 48" src="https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/387059/original/file-20210301-18-vc7b1v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">After senators changed the rules in 2017 to prevent the filibustering of Supreme Court nominations, three justices, including Amy Coney Barrett in 2020, were confirmed to the court with fewer than 60 votes.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBarrett/e7d3d5da9d8949aa80e7b50d707ea0d8/photo">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>The obstruction of progress</h2>
<p>In recent years, the filibuster has not hurt Republicans as much as Democrats because the GOP has focused on <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2017/12/21/how-tax-cuts-for-the-wealthy-became-republican-orthodoxy/">cutting taxes</a> and <a href="https://www.npr.org/2018/05/24/614228261/mitch-mcconnell-on-filling-the-federal-bench-this-is-my-top-priority">confirming judges</a>, both of which can now bypass the filibuster thanks to Senate rule modifications. </p>
<p>Democrats, on the other hand, are going to have a hard time making <a href="https://www.nytimes.com/2021/01/07/upshot/biden-democrats-heath-plans.html">major health care changes</a> or enacting <a href="https://www.politico.com/news/2021/02/18/bidens-immigration-bill-bleak-odds-469769">immigration reform</a>, as <a href="https://www.eenews.net/stories/1063715203">both would be vulnerable to a Republican filibuster</a>. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>The U.S. system has been designed with more checks and balances than many other successful democracies. <a href="https://theconversation.com/the-senate-filibuster-explained-and-why-it-should-be-allowed-to-die-123551">Eliminating the filibuster</a> would bring the federal government in line with the majority of U.S. states and <a href="https://www.pri.org/stories/2013-06-26/are-filibusters-used-outside-united-states">democratic countries around the world</a>.</p><img src="https://counter.theconversation.com/content/156093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US system was designed with more checks and balances than many other successful democracies – the filibuster’s main function is to give undue power to a vocal minority.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1540992021-02-14T17:15:54Z2021-02-14T17:15:54ZFact check US: Is the filibuster one of the major obstacles ahead for Joe Biden?<p>When the Democrats won both of Georgia’s Senate contests in January, they pulled off the unlikely feat of <a href="https://www.nytimes.com/interactive/2020/11/03/us/elections/results-senate.html">gaining control of the Senate</a>. While it’s split 50-50 between Democrats and Republicans, the vice-president is Kamala Harris and thus holds the tie-breaking vote. That gives the Democrats a razor-thin majority, but a majority nonetheless. </p>
<p>Without 60 seats, however, Biden and the Democrats don’t have the strength to overcome a filibuster should any Republican senator, even one, decide to block a bill he or she doesn’t like. Once rare, the filibuster has been used with increasing frequency since the early 2000s, making it more and more difficult for any administration to pass legislation. It was one of the reasons that Obama gave up on passing the 2009 <a href="https://www.americanprogress.org/issues/green/news/2010/10/12/8569/anatomy-of-a-senate-climate-bill-death/">Clean Energy and Security Act</a>, which aimed to curb greenhouse gas emissions. Such were the anticipated obstacles from the Senate, even though the bill had been passed the House by a 219-212.</p>
<p>This situation was <a href="https://www.nytimes.com/2020/12/08/us/politics/tom-udall-farewell-speech-senate.html">denounced by then-New Mexico senator Tom Udall</a> during a farewell speech he gave on December 8, 2020. He called the Senate a “graveyard for progress” and stated that “the reality of the filibuster is paralysis – a deep paralysis”. Some Democrats are dreading the use of this tool for obstruction over the next four years, and calling on Biden to abolish it, such as former Nevada Senator Harry Reid, who told the Associated Press in October 2020 that “the time’s going to come when he’s going to have to move in and get rid of the filibuster”. </p>
<p>Will legislative obstruction be as much of a problem for Biden and his policies as it was for Obama? If so, what options does he have? </p>
<h2>A short history of the filibuster</h2>
<p>The filibuster in its current form is an outgrowth of a <a href="https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">1917 Senate reform</a>. It is a distinctive feature of the Senate and has no equivalent in any other branch of the US government. Once invoked, it allows a senator to speak for as long as they want, without being interrupted.</p>
<p>Filibusters were intended to safeguard the right of minority opinions to be heard. It also allows all senators feel like they are important, because each and every one can in effect prevent a bill from being passed, even when it’s supported by the 99 other senators. After a filibuster, the bill can technically be put back on the table, but the Senate often prefers to move on to the next bill. All the more so that senators typically respect each other’s prerogatives. This means that filibusters do in fact work as a veto on any proposed bill.</p>
<h2>The president’s options when faced with legislative obstruction</h2>
<p>Due to the separation of powers in the United States, the president has no authority over the internal regulations of Congress, and that includes the filibuster. While the Democrats control the Senate and Biden could ask Chuck Schumer, the majority leader, to abolish the filibuster, Biden is an institutionalist. Having spent 20 years in the Senate, he is <a href="https://www.nytimes.com/2021/01/23/us/politics/joe-biden-senate.html">attached to its traditions</a> and appears <a href="https://www.newsweek.com/video-joe-biden-saying-filibuster-about-compromise-moderation-resurfaces-1564276">opposed</a> to any change. That is why he would rather promote his policies in order to persuade Congress to adopt them and avoid wasting precious political capital on a procedural maneuver that’s little known to overwhelming majority of Americans.</p>
<p>Those in the Biden camp who would like to see the filibuster gone believe that because of the make-up of the 117th Congress, there is every likelihood that legislative obstruction will be regularly used. Given that the Republicans have one fewer votes are likely to employ the filibuster as their ace in the hole.</p>
<p>Over the past 20 years, the number of bills that were passed into law has been steadily decreasing. At the same time, partisan polarization has become more pronounced. Passing a piece of legislation is now almost the <a href="https://www.americanprogress.org/issues/democracy/reports/2019/12/05/478199/impact-filibuster-federal-policymaking/">exception to the rule</a>. It is extremely difficult for the two parties to work together on joint projects, and most Republicans are categorically opposed to anything that is submitted by Democrats, which will certainly make it harder for Biden to successfully govern.</p>
<h2>Trying to overcome the filibuster</h2>
<p>The storming of the Capitol by Trump’s supporters on January 6, 2020, was an immense shock, however. Republicans are deeply split over the attack, with some members loudly supporting Trump, many keeping silent, and a limited number denouncing his actions. A key defection is Mitch McConnell, the Senate minority leader, who has <a href="https://www.nytimes.com/2021/01/19/us/politics/mcconnell-trump-capitol-riot.html">distanced himself from the former president</a>. So he might show some goodwill toward President Biden. </p>
<p>As a centrist Democrat, Biden will try to overcome the partisan rift. Barack Obama tried the same approach and was systematically blocked, but this time around some Republicans who oppose Trump may accept Biden’s outstretched hand. Biden is well aware that it will be impossible for him to achieve a 60-vote supermajority with his own party alone, and that requires bipartisanship.</p>
<p>If only a limited number of Republicans cooperate with the Democratic majority, Democrats could make use of procedural methods to counter filibuster attempts, as they did under Obama. First, they could use the “reconciliation” technique that was used to pass the <a href="https://en.wikipedia.org/wiki/Health_Care_and_Education_Reconciliation_Act_of_2010">Health Care and Education Reconciliation Act of 2010</a>, which amended the earlier Affordable Care Act. Second, there’s the “nuclear option”: the Senate majority leader has the power to block the use of filibuster for certain types of legislation.</p>
<p>In 2013, a similar measure was used to abolish the filibuster for institutional nominations, <a href="https://eu.usatoday.com/story/news/factcheck/2020/10/01/fact-check-gop-ended-senate-filibuster-supreme-court-nominees/3573369001/">except for the Supreme Court</a>. In 2017, the Republicans then extended this limited version of the “nuclear option” to end the filibuster against Neil Gorsuch’s nomination to the Supreme Court, knowing full well that Democrats would have blocked it otherwise.</p>
<p>Whether or not President Biden can pass his policies with only 51-50 control of the Senate, it should be noted that the filibuster has led to an almost complete paralysis of the legislative branch. The current Congress could be one of the least productive in history. Moreover, polls indicate that only <a href="https://news.gallup.com/poll/1600/congress-public.aspx">25% of Americans</a> say they’re satisfied with the work of Congress, and even this constitutes a substantial improvement over earlier polls.</p>
<hr>
<p><em>The Fact check US section received support from <a href="https://craignewmarkphilanthropies.org/">Craig Newmark Philanthropies</a>, an American foundation fighting against disinformation.</em></p>
<p><em>Translated from the French by Rosie Marsland for <a href="http://www.fastforword.fr/en">Fast ForWord</a> and Leighton Kille.</em></p><img src="https://counter.theconversation.com/content/154099/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>François Vergniolle de Chantal ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>Endless filibustering has paralysed the US Senate, and with it all of Congress. Will this form of obstructionism be one of the main challenges facing Biden, as some Democrats fear?François Vergniolle de Chantal, Professeur de civilisation américaine à l'Université de Paris (LARCA - CNRS/UMR 8225)., Université Paris CitéLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1538502021-02-11T13:16:48Z2021-02-11T13:16:48ZBipartisanship in Congress isn’t about being nice – it’s about cold, hard numbers<figure><img src="https://images.theconversation.com/files/383597/original/file-20210210-13-518owc.jpg?ixlib=rb-1.1.0&rect=113%2C96%2C5734%2C3796&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden and Vice President Kamala Harris meet Feb. 1 with Republican lawmakers, including Sens. Mitt Romney and Susan Collins, to discuss a coronavirus relief package.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APPollBiden/a99d1081ccc94e41be61084b706557a6/photo?Query=Biden%20AND%20Republican&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1143&currentItemNo=6">AP/Evan Vucci</a></span></figcaption></figure><p>Before he was even inaugurated as president, Joe Biden, elected at a time of strong political polarization, emphasized the importance of bipartisanship in dealing with Congress: “<a href="https://www.wsj.com/articles/biden-talks-up-bipartisanship-he-has-three-good-reasons-11608565014">I think I can work with Republican leadership in the House and Senate. I think we can get some things done</a>.” </p>
<p>Incoming presidents routinely make such appeals, and for good reason. </p>
<p>Senate rules require a “supermajority” – 60 out of 100 senators, including both <a href="https://www.nytimes.com/2020/11/18/opinion/joe-biden-mitch-mcconnell-congress.html">Democrats and Republicans – to pass major legislation</a>. But presidents have found it difficult to fulfill the promise of bipartisanship, which would require negotiation between Democratic and Republican leaders and the agreement of substantial numbers of lawmakers from both parties. </p>
<p>That is why newly elected presidents often resort to <a href="https://www.everycrsreport.com/reports/RL33030.html">an exceptional tool – budget reconciliation</a> – which allows the Senate to bypass the normal 60-vote requirement. Budget reconciliation bills typically contain major changes in spending and tax policy. Since Senate rules provide that, after 20 hours of debate, a simple majority – 51 votes – decides whether reconciliation bills pass, a cohesive Senate majority party can pass a budget bill without votes from the other party.</p>
<p>Thus, presidents may or may not need the support of both parties. Biden is in one of those situations as he seeks congressional approval for a COVID-19 relief bill. Democrats in the Senate have indicated they will, if necessary, disregard the wishes of Republicans and <a href="https://www.nbcnews.com/politics/congress/what-budget-reconciliation-explainer-fast-track-process-covid-relief-n1256592">pass the bill through the budget reconciliation process</a>.</p>
<p>In “<a href="https://scholarship.richmond.edu/bookshelf/147/">Done Deal? The Politics of the 1997 Budget Agreement</a>,” I identify several factors that affect the prospect of bipartisanship in the budget process, where it is not required – but can happen.</p>
<p>A note on the definition of bipartisanship: Politicians often claim they achieved bipartisanship, even if only one member of the opposite party voted with the majority. Most political scientists, like me, <a href="https://www.statesman.com/news/20200213/fact-check-how-many-bipartisan-bills-has-congress-passed">do not consider that bipartisan</a>. Bipartisanship typically requires negotiation by members of opposite parties, and some say it requires agreement by a majority of both parties. Others say bipartisanship is when a negotiation across party lines occurs and the majority party needs votes from the minority to prevail. That is the threshold I use here, though some refer to that as “<a href="https://books.google.com/books?hl=en&lr=&id=xtgbU7FhFM0C&oi=fnd&pg=PP1&dq=charles+jones+cross+partisanship&ots=T1gtRTDlO9&sig=W1BPy_roFQHELHm2CoUHz-nD3ac#v=onepage&q=charles%20jones%20cross%20partisanship&f=false">cross-partisan” rather than “bipartisan</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="President Obama meeting with congressional GOP leaders in 2011" src="https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=482&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=482&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383601/original/file-20210210-23-1srkx36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=482&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Obama and Republican congressional leaders met and ultimately negotiated a package of spending cuts in 2011 under the pressure of defaulting on the national debt.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-barack-obama-takes-part-in-a-meeting-with-news-photo/118400139?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Divided party government</h2>
<p>Party control of the branches is the most important factor.</p>
<p>Bipartisanship is much more likely under divided party control, when the president is of one party and the other party controls the House, the Senate, or both. </p>
<p>A crisis, or perceived crisis, is also a factor that may motivate leaders of opposite parties to negotiate a bipartisan agreement. </p>
<p>Finally, the willingness of congressional leaders of opposite parties to negotiate and compromise also affects bipartisanship. </p>
<p>Consider five examples of bipartisanship during divided party control from the past four decades, four of which involved a crisis: </p>
<p>In 1981, President Ronald Reagan, a Republican, <a href="https://www.nytimes.com/1981/07/30/business/reagan-s-3-year-25-cut-in-tax-rate-voted-by-wide-margins-in-the-house-and-senate.html">relied on a faction of conservative Democrats in the House to pass major tax and spending cuts</a> as the country struggled with both high unemployment and inflation. </p>
<p>In 1990, Republican <a href="https://millercenter.org/president/bush/domestic-affairs">President George H.W. Bush and congressional Democrats agreed to a major bipartisan budget deal</a> under the threat of automatic cuts in domestic and defense spending. </p>
<p>In 1997, Democratic President <a href="https://www.washingtonpost.com/wp-srv/politics/special/budget/stories/080697.htm">Bill Clinton and congressional Republican leaders negotiated a balanced budget agreement</a>, this time without a major crisis. </p>
<p>In 2011, Democratic President Barack <a href="https://www.nytimes.com/2011/04/09/us/politics/09fiscal.html">Obama and Republican congressional leaders negotiated a package of spending</a> cuts under the pressure of defaulting on the national debt.</p>
<p>In 2020, Republican President Donald <a href="https://www.reuters.com/article/us-usa-trump/u-s-house-approves-2000-coronavirus-aid-checks-sought-by-trump-idUSKBN2920I0">Trump and a Democratic majority in the House agreed to several major bills</a> designed to fight the effects of COVID-19. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Sen. Joe Manchin speaking on a cellphone." src="https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383604/original/file-20210210-21-ipup86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will moderate Democrats like Sen. Joe Manchin of West Virginia become more powerful in a closely divided Senate if bipartisanship isn’t pursued?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sen-joe-manchin-talks-on-the-phone-as-he-walks-to-a-vote-at-news-photo/1231051477?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>Unified party government</h2>
<p>Bipartisanship is much less likely under unified party government, when one party controls both the presidency and Congress. The president typically gives up on bipartisan negotiations and bargains with fellow partisans in Congress to forge legislation. </p>
<p>In 1993, President <a href="https://www.nytimes.com/1993/08/06/us/budget-struggle-house-passes-budget-plan-backing-clinton-218-216-after-hectic.html">Clinton and congressional Democrats passed a major package of tax and spending increases</a> without Republican support. Similarly, in <a href="https://www.nytimes.com/2009/01/29/us/politics/29obama.html">2009, President Obama and Democratic majorities in the House and Senate developed an economic stimulus bill</a> with no Republican support, and in <a href="https://www.nytimes.com/2017/12/19/us/politics/tax-bill-vote-congress.html">2017, President Trump needed only Republicans to pass a major tax cut bill</a>.</p>
<p>An exception to this pattern occurred in <a href="https://millercenter.org/the-presidency/presidential-speeches/june-7-2001-remarks-signing-economic-growth-and-tax-relief">2001 – a bipartisan coalition prevailed to pass a major tax bill</a>.</p>
<p>Republican President George W. Bush, who narrowly won the 2000 election, had <a href="https://www.britannica.com/biography/George-W-Bush/Presidency">the advantage of Republican majorities in the House and Senate</a>. But they were slim majorities – in 2001, Republicans had only a nine-seat advantage in the House and, <a href="https://www.nytimes.com/2001/01/03/opinion/dick-cheney-the-101st-senator.html">since the Senate was split 50-50, Vice President Dick Cheney held the tie-breaking vote</a>. </p>
<p>This put <a href="https://www.nytimes.com/2001/05/24/us/balance-power-tax-vote-senate-approves-cut-income-tax-bipartisan-vote.html">moderate Senate Republicans who were concerned about budget deficits</a> in a powerful negotiating position. Bush ultimately agreed to cut the bill’s cost by US$300 billion and <a href="https://www.washingtonpost.com/news/wonk/wp/2013/01/02/the-legacy-of-the-bush-tax-cuts-in-four-charts/">include an expiration date</a> of 10 years for the tax cuts, unless Congress renewed them. </p>
<p>Since a handful of Republicans – dubious of the need for tax cuts and wary of the effects on deficits – voted against the bill, <a href="https://www.politifact.com/factchecks/2010/mar/05/alan-grayson/bush-tax-cuts-were-passed-reconciliations-50-votes/">Bush needed, and got, the votes of 28 Democrats in the House and 12 in the Senate</a>.</p>
<h2>2021: Bipartisanship under unified party control?</h2>
<p>Today, Democrats control both branches of government and the nation is in crisis. Like the Republicans in 2001, <a href="https://www.washingtonpost.com/business/what-a-50-50-senate-means-for-biden-and-for-the-us/2021/01/20/1fc23b3e-5b43-11eb-a849-6f9423a75ffd_story.html">Democrats have a slim majority of House seats, and a tie-breaking vote in a 50-50 Senate</a>. President Biden seems to favor bipartisanship more than do <a href="https://www.newsweek.com/stimulus-update-biden-pelosi-prepare-push-1400-payments-without-gop-backing-1565579">Democratic congressional leaders – Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer</a>. </p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p>
<p>Biden is seeking congressional approval for a major bill, a <a href="https://www.cnn.com/2021/01/14/politics/biden-economic-rescue-package-coronavirus-stimulus/index.html">$1.9 trillion COVID-19 relief package to address a broad range of concerns, from vaccine distribution and economic stimulus payments to assistance for state and local governments, including schools</a>. Yet <a href="https://www.politico.com/news/2021/01/24/senators-question-biden-covid-plan-461987">Republicans believe the bill is too costly and too broad, and some congressional Democrats agree with them</a>. </p>
<p>A counterproposal offered by a group of 10 Republicans is one-third of the cost and targeted mostly toward <a href="https://www.brookings.edu/blog/up-front/2021/02/03/a-macroeconomic-analysis-of-a-senate-republican-covid-relief-package/">COVID-19 relief and vaccinations, aid for economically distressed families and support for struggling business</a>.</p>
<p>Even though <a href="https://thehill.com/homenews/senate/537069-gop-courts-biden-who-signals-he-might-move-without-them">Biden may want to find common ground with Republicans</a>, Pelosi and Schumer distrust them. Eager to take <a href="https://www.businessinsider.com/democrats-kick-off-efforts-to-ditch-republicans-on-stimulus-2021-2">“decisive action,” they resorted to budget reconciliation where a Democratic majority can work its will in the Senate</a>.</p>
<p>As in 2001, moderates within the majority party – led by Joe Manchin of West Virginia – now have outsize influence and are in <a href="https://www.politico.com/news/2021/02/07/joe-manchin-senate-congress-466132">a unique position to shape the outcome</a>. Ultimately, a few Republicans may vote in favor of the final bill forged by Democrats, but their support will be far short of a true bipartisan agreement.</p><img src="https://counter.theconversation.com/content/153850/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Palazzolo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Politicians say they want it, but how often, and under what circumstances, does bipartisanship really happen?Daniel Palazzolo, Professor of Political Science, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1470622020-10-01T12:26:50Z2020-10-01T12:26:50ZMitch McConnell’s legacy is a conservative Supreme Court shaped by his calculated audacity<figure><img src="https://images.theconversation.com/files/360631/original/file-20200929-20-c3dut8.jpg?ixlib=rb-1.1.0&rect=17%2C34%2C5768%2C3817&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Majority Leader Mitch McConnell with reporters, July 30, 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-majority-leader-mitch-mcconnell-is-swarmed-by-news-photo/1227843983?adppopup=true">Drew Angerer/Getty Images)</a></span></figcaption></figure><p>Unless Democrats win both the White House and the Senate in November, abolish the filibuster and expand the Supreme Court, Majority Leader Mitch McConnell is <a href="https://www.politico.com/news/2020/09/28/senate-judiciary-staffs-up-for-barrett-fight-422595">about to finish his project of remaking the federal judiciary from top to bottom</a>. </p>
<p>The impact of that achievement will outlive the 78-year-old Kentuckian, making it the biggest piece of his large legacy in Senate history.</p>
<p>This feat could hardly have been predicted when Senate Republicans elected McConnell their leader in 2006. For most of the 40-plus years I have watched McConnell, first as a reporter covering Kentucky politics and now as a <a href="https://ci.uky.edu/jam/faculty-directory/al-cross">journalism professor focused on rural issues</a>, he seemed to have no great ambition or goals, other than gaining power and keeping it. </p>
<p>He always cared about the courts, though. In 1987, after Democrats defeated Supreme Court nominee Robert Bork, <a href="https://www.pbs.org/wgbh/frontline/film/supreme-revenge/">McConnell warned</a> that if a Democratic president “sends up somebody we don’t like” to a Republican-controlled Senate, the GOP would follow suit. He fulfilled that threat in 2016, <a href="https://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland-nomination-soon">refusing to confirm Merrick Garland</a>, Obama’s pick for the Supreme Court. </p>
<p>Keeping that vacancy open helped elect Donald Trump. Two people could hardly be more different, but the taciturn McConnell and the voluble Trump have at least one thing in common: They want power. </p>
<p>Trump exercises his power with what often seems like reckless audacity, but McConnell’s 36-year Senate tenure is built on his calculated audacity.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Trump points at McConnell in a crowd while shaking his hand" src="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360565/original/file-20200929-18-u7yqy1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump and McConnell in February 2017.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-shakes-hands-with-senate-majority-news-photo/646462182?adppopup=true">Bill Clark/CQ Roll Call</a></span>
</figcaption>
</figure>
<h2>McConnell’s political rise</h2>
<p>It was audacious, back in 1977, to think that a wonky lawyer who had been disqualified from his only previous campaign for public office could defeat a popular two-term county executive in Louisville. </p>
<p>McConnell ran anyway. </p>
<p>It was audacious to think that a Republican could get the local labor council to endorse him in that race, but he got it, by <a href="https://www.npr.org/transcripts/729957825">leading the members to believe he would help them get collective bargaining for public employees</a>. </p>
<p>McConnell won the race. He didn’t pursue collective bargaining.</p>
<p>Seven years later, it was audacious to think that an urbanite who wore loafers to dusty, gravelly county fairs and lacked a compelling personality could unseat a popular two-term Kentucky senator, especially when he trailed by <a href="https://www.mcclatchydc.com/news/politics-government/congress/article151298992.html">40 points</a> in August, but McConnell won. </p>
<p>As soon as he won a second term in 1990, McConnell started <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">climbing the Senate leadership ladder</a>, facilitated in large measure by his willingness to be the point man on campaign finance issues, an area his colleagues feared. They reacted emotionally to this touchy issue; he studied it, owned it and moved higher in the leadership.</p>
<h2>Business, not service</h2>
<p>In politics, lack of emotion is usually a drawback. McConnell makes up for that by having command of the rules and the facts and a methodical attitude.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black and white image of a younger Mcconnell" src="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360558/original/file-20200929-14-898n8g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">McConnell in 1992.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/close-up-of-sen-mitch-mcconnell-r-ky-in-april-1992-news-photo/674220092?adppopup=true">Laura Patterson/CQ Roll Call via Getty Images</a></span>
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</figure>
<p>The recording on his home phone once said, “This is Mitch McConnell. You’ve reached my home. If this call is about business, please call my office.”</p>
<p>Business. Not something like “my service to you in the United States Senate,” but “business.” </p>
<p>This lack of emotion keeps McConnell disciplined. I am not the only person he has told, “The most important word in the English language is ‘focus,’ because if you don’t focus, you don’t get anything done.”</p>
<p>Last year, I spoke to the <a href="https://louisville.edu/admissions/cost-aid/scholarships/mentored-scholarships/mcconnell">McConnell Scholars</a>, the political-leadership program he started at the University of Louisville. One thank-you gift was a letter opener bearing two words: focus and humility. The first word was no surprise, because of McConnell’s well-known maxim; the second one intrigued me.</p>
<p>The director of the program, Gary Gregg, says adding “humility” was his idea. But it fits the founder. With his studied approach and careful reticence, McConnell is the opposite of bombast, and that surely helped him gain the Republican leader’s job and stay there. He has occasionally described his colleagues as prima donnas who <a href="https://www.nytimes.com/2019/01/22/magazine/mcconnell-senate-trump.html">look in the mirror and see a president</a>, something he claims to have never done. </p>
<p>When the colleagues in your party caucus know you are focused on their interests and not your own, you can keep getting reelected leader, as McConnell has done without opposition every two years since 2006.</p>
<h2>McConnell’s Supreme Court</h2>
<p>McConnell’s caucus trusts him. When he saw Obama as an existential threat – someone who could bring back enough moderate Democrats to give the party a long-term governing majority – McConnell held the caucus together <a href="https://www.nytimes.com/2010/03/24/health/policy/24health.html">in opposition to Obamacare</a>, and Republicans used that as an issue to rouse their base in the 2010 midterm election.</p>
<p>Meanwhile, McConnell was working on the federal judiciary. <a href="https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html">He and his colleagues slow-walked</a> and filibustered Obama’s nominees, requiring “aye” votes from 60 of the 100 senators to confirm each one. The process consumed so much time that then-Majority Leader Harry Reid abolished the filibuster for nominations, except those to the Supreme Court. </p>
<p>That sped up the process, allowing Obama to appoint 323 judges, <a href="https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obstructionism-handed-judicial-vacancies-to-trump/">about as many</a> as George W. Bush. But Republicans’ additional delaying tactics still left 105 vacancies for Trump to fill.</p>
<p>When Democrats weakened the filibuster, McConnell <a href="https://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html">warned</a>, “You’ll regret this. And you may regret it a lot sooner than you think.”</p>
<p>Seven years later, Democrats may concede that point. McConnell and Trump have put nearly 200 judges on the federal courts, making them all the more a <a href="https://www.npr.org/2020/07/02/886285772/trump-and-mcconnell-via-swath-of-judges-will-affect-u-s-law-for-decades">white-male bastion of judicial conservatism</a>.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>When <a href="https://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html">Justice Antonin Scalia died in February 2016</a> and McConnell said <a href="https://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248">the seat wouldn’t be filled until after the November election</a>, it was another case of calculated audacity.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Schumer holds a sign reading, 'The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.'" src="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360555/original/file-20200929-18-1fbrdf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sen. Chuck Schumer reminding McConnell of his ‘rule,’ September 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/senate-minority-leader-chuck-schumer-holds-a-poster-with-a-news-photo/1275576995?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>Democrats cried foul, but they were powerless to reverse his decision because Republicans stuck with him.</p>
<p>Trump’s victory preserved the Senate Republican majority, which then did away with the Supreme Court exception, allowing McConnell and his colleagues to install by simple majority vote the sort of Supreme Court justices they wanted: Neil Gorsuch, Brett Kavanaugh – and, now, it seems almost certain, <a href="https://www.cnn.com/2020/09/26/politics/amy-coney-barrett-supreme-court-nominee/index.html">Amy Coney Barrett</a>.</p><img src="https://counter.theconversation.com/content/147062/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Al Cross does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How an uncharismatic Kentucky lawyer came to rule the Senate and remake the federal judiciary from top to bottom.Al Cross, Director and Professor, Institute for Rural Journalism and Community Issues, University of KentuckyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235512019-09-13T18:29:19Z2019-09-13T18:29:19ZThe Senate filibuster explained – and why it should be allowed to die<figure><img src="https://images.theconversation.com/files/292468/original/file-20190913-8674-p6pzrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The filibuster is like a stoplight that's always red.
</span> <span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span></figcaption></figure><p>Sen. Elizabeth Warren <a href="https://www.npr.org/2019/09/12/760375754/what-is-the-filibuster-and-why-do-some-democrats-want-to-end-it">is the latest Democrat</a> to argue an arcane Senate rule governing debate stands in the way of passing a progressive agenda, such as meaningful gun control. </p>
<p>The procedure, known as the filibuster, allows a 41-vote minority in the Senate to block legislation. Its power has been steadily eroding, however, as both Democratic and Republican lawmakers create procedures to get around the roadblock to pass everything from the Affordable Care Act to President Donald Trump’s Supreme Court nominees. </p>
<p>Should the Senate move even farther toward being a legislative body characterized by majority rule rather than minority obstruction?</p>
<p>Many Democrats, including me, might resist anything that helps Trump and his GOP Senate majority pass their agenda. Yet as a <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">scholar of the Senate</a> and advocate of responsible government, I believe the end of the 60-vote Senate would nonetheless be a good thing for the country – and conform to the founders’ intentions.</p>
<h2>The filibuster explained</h2>
<p>The filibuster, which comes <a href="https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">from the Dutch word</a> for pirate, is embodied in Senate Rule XXII. It says cloture – a motion to end debate on a bill – requires a supermajority of at least 60 votes on most matters under consideration.</p>
<p>Although <a href="http://www.politico.com/story/2017/04/senators-urge-save-filibuster-237014">some lawmakers argue</a> the filibuster is what makes the Senate unique, a supermajority threshold is not what defines the legislative chamber.</p>
<p>As <a href="https://www.brookings.edu/book/politics-or-principle/">political scientists</a> and historians have noted over and over again, supermajority cloture is not part of – and cannot be derived from – the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">are what distinguish</a> the Senate’s style of deliberation and decision-making from the House.</p>
<p>In fact, although it may seem like the 60-vote filibuster has been with us forever, <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">it’s actually only been around</a> since 1917.</p>
<p>Moreover, the protection of the minority, often cited as a justification for the filibuster, is of the system as a whole: the separate branches, the checks, federalism. It’s not the role of the Senate alone to protect minority interests.</p>
<h2>Filibuster erosion</h2>
<p>Over several decades, Congress has used dozens of legislative “carve-outs” that have eroded the filibuster and protected specific categories of legislation from minority obstruction in the Senate.</p>
<p>For example, lawmakers use a <a href="https://www.senate.gov/CRSpubs/445f5bac-e33d-403b-b78e-ab7d2610c421.pdf">“fast-track” procedure</a> to pass <a href="https://fas.org/sgp/crs/misc/R43491.pdf">trade agreements</a> and <a href="https://fas.org/sgp/crs/natsec/R43102.pdf">decide whether to close military bases</a>. This places a time limit on consideration and quashes minority obstruction in the Senate because a simple majority vote will be held at the end of the time restriction. </p>
<p>Increased use of <a href="https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation">budget reconciliation</a> for <a href="https://www.politico.com/magazine/story/2017/10/15/how-budget-reconciliation-broke-congress-215706">major legislation</a> is another carve-out. The <a href="https://www.ehealthinsurance.com/resources/affordable-care-act/history-timeline-affordable-care-act-aca">Affordable Care Act</a>, <a href="https://constitutioncenter.org/blog/will-the-legislative-filibuster-fall-along-with-obamacare">efforts to repeal</a> that law and the <a href="https://www.vox.com/policy-and-politics/2017/11/14/16634200/republican-tax-reform-byrd-rule">2017 Trump tax cut</a> are examples of this process. </p>
<p>In 2013, Democrats controlling the Senate took it a step farther and <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html">voted to allow all nominations</a> other than for the Supreme Court to be approved by majority vote. This was the most important change in Senate standing rules – or, to be precise, in their interpretation – since at least 1975. It allowed Democrats to confirm a <a href="https://www.degruyter.com/downloadpdf/j/for.2015.13.issue-4/for-2015-0042/for-2015-0042.pdf">significant number of nominations</a> for President Barack Obama who were being blocked by the Republican minority. </p>
<p>Just over three years later, the Senate, now under GOP control, <a href="http://thehill.com/homenews/senate/327591-gop-triggers-nuclear-option-gutting-filibuster-in-gorsuch-fight">voted</a> to apply the same interpretation to nominations to the Supreme Court. The immediate result, of course, was the <a href="https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html">slim confirmations</a> of Neil Gorsuch and later <a href="https://www.cnn.com/2018/10/06/politics/how-senators-voted-on-brett-kavanaugh/index.html">Brett Kavanaugh</a>. </p>
<h2>Restoring the Senate’s important but limited role</h2>
<p>Today, the 60-vote Senate remains powerful but circumscribed. </p>
<p>This threshold for ending debate still applies to most legislation, including appropriations bills and most laws in areas such as military policy, the environment or civil rights. And for Democrats hoping to occupy the White House in 2020, the need of a supermajority would likely prevent action on gun control, a Green New Deal and significant health care legislation like “Medicare for All.”</p>
<p>But by creating the various restrictions on its use in recent years, the Senate has repeatedly recognized that the 60-vote threshold is often dysfunctional and that the costs to effective governance are too high. The norms that support the supermajority Senate are eroding. </p>
<p>It’s also contributed to broader congressional dysfunction. The Senate behaves less and less like the world’s “<a href="https://www.loc.gov/item/2016683162/">greatest deliberative body</a>” – as some like to believe – and more like the least deliberative, particularly under the leadership of Majority Leader Mitch McConnell. The Senate <a href="https://www.nytimes.com/2019/08/03/us/politics/senate-votes-mcconnell.html?searchResultPosition=4">rarely debates</a>, and McConnell – in his <a href="https://thehill.com/homenews/senate/440041-mcconnell-pledges-to-be-grim-reaper-for-progressive-policies">self-styled role as the “grim reaper”</a> – doesn’t allow amendments or legislation that he or the president disagrees with to come up for a vote, regardless of how much support it has in the chamber.</p>
<p>I believe the Senate should change its rules to allow a simple majority to close debate on any bill, nomination or other matter, while also guaranteeing a minimum period of debate for any piece of legislation, which would allow the minority position to be voiced and debated. </p>
<p>In so doing, the Senate would end its undemocratic pretensions and resume its prescribed and limited role in the system of checks and balances. That would be a good thing no matter which party controls the Senate and regardless of who is, or will be, president.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/trumps-right-about-one-thing-the-us-senate-should-end-its-60-vote-majority-88761">article originally published</a> on Dec. 13, 2017.</em></p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/123551/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Wirls is on the Board of the Council for a Livable World.</span></em></p>Sen. Warren said the filibuster stands in the way of gun reform. It does, and so much more.Daniel Wirls, Professor of Politics, University of California, Santa CruzLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/887612017-12-14T03:56:14Z2017-12-14T03:56:14ZTrump’s right about one thing: The US Senate should end its 60-vote majority<p>As the <a href="https://uk.reuters.com/article/uk-global-poy-trump/trumps-first-year-in-office-marked-by-controversy-protests-idUKKBN1E01W5">dramatic and traumatic first year</a> of the Trump presidency nears the finish line, with major legislative struggles over <a href="https://www.washingtonpost.com/business/economy/johnson-to-back-senate-tax-bill-putting-gop-leaders-close-to-securing-passage/2017/12/01/0226ff98-d6a2-11e7-b62d-d9345ced896d_story.html">tax legislation</a> and the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/11/28/5-very-real-scenarios-that-could-lead-to-a-government-shutdown/">budget</a>, it is easy to overlook other important political events.</p>
<p>One such development is essential to both the tax reform package, which would be Trump’s only significant legislative achievement to date, and the less noted but spectacular success the president has had with <a href="https://www.nytimes.com/2017/11/11/us/politics/trump-judiciary-appeals-courts-conservatives.html">judicial nominations</a>.</p>
<p>In both cases success has depended on procedures created to negate the Senate filibuster, which is better thought of as minority obstruction.</p>
<p>The question now is, should the Senate move even further toward being a legislative body characterized by majority rule rather than minority obstruction?</p>
<p>Many Democrats, including me, might resist anything that helps President Donald Trump and his GOP congressional majority. Yet as a <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">scholar of the Senate</a> and advocate of responsible government, I believe the end of the 60-vote Senate would nonetheless be a good thing for the country – and conform to what the founders intended.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/198582/original/file-20171211-27683-hb0m6a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sen. Charles Schumer and former Senate Majority Leader Harry Reid defend their vote to weaken the filibuster.</span>
<span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span>
</figcaption>
</figure>
<h2>Limited nuclear warfare in the Senate</h2>
<p>On Nov. 21, 2013 the Senate, under Democratic control, <a href="https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.3b953842dea7">decided by a 52-48 vote</a> that the “vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” </p>
<p>These few and perhaps obscure words embodied the most important change in Senate standing rules – or, to be precise, in their interpretation – since at least 1975.</p>
<p>Rule XXII is the Senate rule that defines <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">cloture</a> – a motion to bring debate to a close – and requires a supermajority of at least 60 votes on most matters under consideration. The 60-vote threshold is what empowers filibusters or minority obstruction and can prevent a final vote on legislation. The 2013 decision eliminated that barrier for nearly all nominations to the executive and judicial branches. This allowed Democrats to confirm a <a href="https://www.degruyter.com/downloadpdf/j/for.2015.13.issue-4/for-2015-0042/for-2015-0042.pdf">significant number of nominations</a> after cloture was invoked with a simple majority vote.</p>
<p>Just over three years later, on April 6, 2017, the Senate, under GOP control and with exclusively Republican support, <a href="http://thehill.com/homenews/senate/327591-gop-triggers-nuclear-option-gutting-filibuster-in-gorsuch-fight">voted by the same margin</a> to apply the same interpretation to nominations to the Supreme Court. The immediate result, of course, was the <a href="https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html">easy confirmation</a> of Neil Gorsuch. </p>
<h2>What this means</h2>
<p>These decisions are significant for four reasons.</p>
<p>First, an entire category of Senate business, its constitutional duty to give “advice and consent” on presidential nominations, was protected from obstruction by the minority.</p>
<p>Second, only a few years apart, a majority from each party voted to categorically restrict the filibuster.</p>
<p>Third, in each case the Democratic or Republican majority employed the same controversial method – often referred to as the <a href="https://www.senate.gov/CRSpubs/cc582238-01e2-41b2-b955-5fdb2ed7b778.pdf">“nuclear option”</a> or <a href="http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf">“constitutional option”</a> – to make these significant changes in a standing rule of the Senate.</p>
<p>Instead of amending the wording of the standing rule, the majority called for a parliamentary interpretation and ruling, which requires only a simple majority vote to sustain or overturn. </p>
<p>Finally, this change will likely endure now that it has been sustained by majorities of both Republicans and Democrats.</p>
<h2>Fast-tracking past the filibuster</h2>
<p>Use of the so-called nuclear option was spectacular, controversial and did bring significant change to the Senate. Yet these moves have also been complemented by a different type of limitation on minority obstruction. </p>
<p>Over several decades, Congress has forged and used dozens of legislative “carve-outs” or – to use congressional scholar <a href="https://www.brookings.edu/book/exceptions-to-the-rule/">Molly Reynold’s term</a> – “majoritarian exceptions” that protect specific categories of legislation from minority obstruction in the Senate.</p>
<p>Every legislative carve-out features a time limit on consideration that applies to both chambers. This quashes minority obstruction in the Senate because a simple majority vote will be held at the end of the time restriction. The term <a href="https://www.senate.gov/CRSpubs/445f5bac-e33d-403b-b78e-ab7d2610c421.pdf">“fast-track”</a> is often associated with these provisions that expedite congressional consideration. These include such specifics as approval of <a href="https://fas.org/sgp/crs/misc/R43491.pdf">trade agreements</a> and the <a href="https://fas.org/sgp/crs/natsec/R43102.pdf">military base closure process</a>. In each case, lawmakers used a “fast-track” procedure to prevent obstruction.</p>
<p>Looming large in this category is the increased use of <a href="https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation">budget reconciliation</a> for <a href="https://www.politico.com/magazine/story/2017/10/15/how-budget-reconciliation-broke-congress-215706">major legislation</a>, such as the final work on passage of the Affordable Care Act, the 2017 attempt to repeal that law and the current Republican tax legislation. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=477&fit=crop&dpr=1 600w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=477&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=477&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=599&fit=crop&dpr=1 754w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=599&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/198591/original/file-20171211-27714-d6eb9k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=599&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Sen. Strom Thurmond exits the Senate after he held a 24-hour filibuster – the longest ever – in hopes of stopping the Civil Rights Act of 1957. The bill easily passed two hours later.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<h2>Restoring the Senate’s important but limited role</h2>
<p>The 60-vote Senate remains powerful but circumscribed. This threshold for ending debate still applies to most legislation. This includes appropriations bills and most laws in areas such as military policy, the environment or civil rights.</p>
<p>Still, the combination of the legislative carve-outs with the entire category of nominations nevertheless constitutes a serious diminution of supermajority politics. </p>
<p>Following the second nuclear option in 2017, many senators and observers asked whether the Senate might be heading toward the elimination of supermajority cloture entirely. “Let us go no further on this path,” <a href="https://www.nytimes.com/2017/04/06/us/politics/filibuster-senate-republicans.html?_r=0">said</a> Minority Leader Chuck Schumer. </p>
<p><a href="http://www.politico.com/story/2017/04/senators-urge-save-filibuster-237014">A letter</a> signed by a bipartisan group of 61 Senators implored the majority and minority leaders to help them preserve 60 votes for most legislation. Sen. Lindsay Graham, who voted for the 2017 nuclear option, <a href="http://www.weeklystandard.com/read-lindsey-grahams-speech-on-the-court-filibuster-and-future-of-the-senate/article/2007549">warned</a> that if the Senate does away with the requirement, “that will be the end of the Senate.”</p>
<p>While most senators showed little appetite for further curtailment of supermajority cloture, President Donald Trump was ready to go all the way. Trump has more than once tweeted, with characteristic imprecision, his support for an end to all 60-vote thresholds in the Senate, the first time a president has taken such a stance. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"890931465885798400"}"></div></p>
<h2>Finish what it started</h2>
<p>In this rare instance, I agree with the president.</p>
<p>By creating these restrictions, the Senate has repeatedly recognized that the 60-vote threshold is often dysfunctional and that the costs to effective governance are too high. </p>
<p>The norms that support the supermajority Senate are eroding. And from a constitutional perspective, that’s just fine. Contrary to Graham’s all too common sentiment, a supermajority threshold is not what defines the Senate.</p>
<p>As <a href="https://www.brookings.edu/book/politics-or-principle/">political scientists</a> and historians have noted over and over again, supermajority cloture is not part of and cannot be derived from the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement <a href="https://jhupbooks.press.jhu.edu/content/invention-united-states-senate">are what distinguish</a> the Senate’s style of deliberation and decision-making from the House.</p>
<p>In fact, although it may seem like the 60-vote filibuster has been with us forever, <a href="https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm">it’s actually only been around</a> since 1917.</p>
<p>Moreover, the protection of minority interests, often cited as a justification for the filibuster, is a product of the system as a whole – the separate branches, the checks, federalism – not the self-appointed duty of the Senate.</p>
<p>To finish what it started, the Senate could change its rules to allow a simple majority to close debate on any bill, nomination or other matter, while also guaranteeing a minimum period of debate, which would allow the minority position to be voiced and debated. </p>
<p>In so doing the Senate would end its undemocratic pretensions and resume its prescribed and limited role in the system of checks and balances. That would be a good thing no matter which party controls the Senate and regardless of who is, or will be, president.</p><img src="https://counter.theconversation.com/content/88761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Wirls does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Republicans were able to push through a tax plan and a flurry of judicial nominees after the Senate curtailed use of the filibuster. It’s time to go all the way.Daniel Wirls, Professor of Politics, University of California, Santa CruzLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/878102017-12-02T13:12:28Z2017-12-02T13:12:28ZThe latest threat to peace in Colombia: Congress<p>The peace process in Colombia has reached a new landmark. </p>
<p>On Nov. 30, both houses of Congress <a href="http://www.eltiempo.com/politica/congreso/jep-pasa-conciliacion-en-el-senado-y-termina-tramite-en-el-congreso-157062">approved a bill</a> establishing an alternative criminal justice system to judge those accused of war crimes during the country’s 52-year conflict. </p>
<p>But, like every step in this arduous multi-year peace effort, this latest victory was hard won. For 10 months, congressional representatives who oppose Colombia’s controversial November 2016 peace accord with the FARC guerrillas have used all manner of delays to slow implementation of the complex deal, of which the new criminal justice system is just a small part.</p>
<p>The filibuster is their latest tactic. The strategy of stopping legislation from passing by whatever means necessary occurs in many countries – most famously <a href="https://www.senate.gov/reference/Index/Filibuster.htm">in the United States</a>, where <a href="https://theconversation.com/filibusters-make-for-strange-bedfellows-39011">minority party members</a> can speak for hours nonstop to run down the clock and compel the opposition to amend a bill. </p>
<p>In Colombia, conservative lawmakers have been impeding their country’s peace process by filing nonstop petitions to modify bills while they are being drafted in Congress, and <a href="http://www.eltiempo.com/opinion/columnistas/ricardo-silva-romero/quorum-jep-en-el-congreso-147568">systematically skipping</a> key debates on implementing the Havana accords.</p>
<p>This, to my knowledge as a <a href="https://eur.academia.edu/FABIOANDRESDIAZ">peace and conflict researcher</a>, is the first time in the world a legislative body has tried to derail its government’s own peace process.</p>
<p>It is a risky move. Numerous international observers, including the United Nations, have <a href="https://www.elespectador.com/noticias/politica/incumplir-acuerdo-de-paz-no-sera-aceptado-por-la-comunidad-internacional-jeffrey-feltman-articulo-723347">warned the government</a> that failure to fulfill its end of the bargain with the FARC could prove a lethal mistake, provoking the former guerrilla group and reigniting war.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"931885456559624192"}"></div></p>
<h2>Filibustering justice</h2>
<p>Colombia’s peace deal with the FARC has seen powerful opposition since the start. In October 2016, it was <a href="https://www.washingtonpost.com/world/colombians-vote-on-historic-peace-agreement-with-farc-rebels/2016/10/02/8ef1a2a2-84b4-11e6-b57d-dd49277af02f_story.html">narrowly rejected at referendum</a>.</p>
<p>And though in November 2016 President Juan Manuel Santos strong-armed Congress into approving the accords – which had just <a href="https://theconversation.com/santos-has-won-his-nobel-prize-but-peace-eludes-the-colombian-people-66666">won him a Nobel Peace Prize</a> – he still needs them to put the deal’s provisions into action. </p>
<p>That’s because while the 2016 peace deal was ambitious in <a href="http://www.altocomisionadoparalapaz.gov.co/procesos-y-conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal.pdf">envisioning the goals</a> of Colombia’s transition to peace, the 300-page document – like most peace agreements – did not answer every question that would arise in getting there. </p>
<p>For example, it was up to Congress to interpret, design and determine the details of <a href="http://www.altocomisionadoparalapaz.gov.co/Documents/informes-especiales/abc-del-proceso-de-paz/abc-jurisdiccion-especial-paz.html">Colombia’s transitional justice system</a> – a special tribunal for trying war criminals and doling out reparations to victims. </p>
<p>Likewise, the accords assert that former combatants may now run for public office, but can they do so before they’ve been tried and before victims have seen their recompense? And if a FARC fighter is elected to Congress but later found to be guilty of war crimes, must he or she resign? </p>
<p>The peace deal offered no guidance on these troubling questions. Hence, in recent months many conservative politicians seemed hesitant – justifiably, perhaps – to <a href="http://lasillavacia.com/con-su-fallo-prozac-la-corte-salva-la-jep-63476">allow former combatants to run for elected office when victims had yet to be recompensed</a>. As a result, a substantial number of lawmakers simply failed to show up to votes on the transitional justice system, making a quorum impossible. </p>
<p>Lawmakers from conservative parties also proposed more <a href="http://caracol.com.co/radio/2017/11/09/nacional/1510182706_569150.html">than 150 changes to the bill</a>, compelling fresh debate and constant redrafting. Some changes may have been proposed in good faith to improve this imperfect deal. </p>
<p>But in general the cascade of demands to change agreed-upon aspects of the peace deal seems designed to provoke the FARC and slow legislative progress. By mid-November, <a href="http://www.semana.com/nacion/articulo/ponencia-de-corte-constitucional-pide-tumbar-parte-del-blindaje-del-acuerdo-de-paz/537290">many feared</a> that the transitional justice tribunal – a critical component of building peace – would never even come up for a floor vote.</p>
<h2>Election season</h2>
<p>The upcoming presidential campaign in Colombia has likewise turned the peace process into a political bargaining chip. </p>
<p>Just over a year ago, just over <a href="http://plebiscito.registraduria.gov.co/99PL/DPLZZZZZZZZZZZZZZZZZ_L1.htm">half of all Colombians</a> voted against the FARC agreement. As an astonishing <a href="http://www.semana.com/confidenciales/articulo/elecciones-2018-record-mundial-por-numero-de-candidatos/546118">53 presidential candidates</a> now jockey to compete in the May 2018 election, avoiding getting into the nitty-gritty of the peace process is just good politics. </p>
<p>As such, presidential aspirants from conservative parties – including the <a href="http://www.centrodemocratico.com/">Democratic Center</a>, <a href="http://www.partidocambioradical.org/">Radical Change</a> and <a href="http://partidoconservador.com/">Conservative</a> parties – are simply refusing to sign anything or vote for or against a particular provision. </p>
<p>And with the Santos administration well into its lame duck period, politicians feel little pressure to negotiate with the president to get things done.</p>
<h2>Two steps forward, one step back</h2>
<p>That said, congressional opposition to the peace deal has shown some success in clarifying some of its most vexingly vague provisions. On Nov. 15, the Colombian <a href="http://www.corteconstitucional.gov.co/comunicados/No.%2055%20comunicado%2014%20de%20noviembre%20de%202017.pdf">Constitutional Court issued guidance</a> based on the questions raised in these nonstop congressional debates. </p>
<p>Among the court’s most important rulings was the decision that a former combatant who breaks with the accord – by committing a crime in peacetime, say – will lose the right to such benefits as receiving a reduced sentence. </p>
<p>The court likewise asserted that former fighters may in fact run for office while the victims’ rights component of the peace process is still in development as long as they comply with the requirements of the alternative justice court.</p>
<p>But filibustering remains a risky strategy. The victims’ justice framework, which took 10 months to pass, <a href="http://www.semana.com/nacion/articulo/implementacion-de-la-paz-congreso-cerca-a-terminar-el-fast-track/547720">is not the only law needed to enact the peace process</a>.</p>
<p>To date, the government has <a href="http://static.iris.net.co/semana/upload/documents/informe-kroc.pdf">begun implementation of only 45 percent</a> of the more than 500 provisions it agreed to in the peace agreements with the FARC.</p>
<p>Next, Congress must figure out how to <a href="http://www.altocomisionadoparalapaz.gov.co/Documents/informes-especiales/abc-del-proceso-de-paz/politica-de-desarrollo-agrario-integral.html">pass agrarian reform</a> – a longtime goal of the FARC – meet guarantees for political participation and develop a national budget that can actually fund all these peace-building projects. </p>
<p>The FARC’s leadership has so far complied with the agreements, demobilizing its combatants, laying down weapons and joining retraining programs. But the state’s foot-dragging has raised the dangerous specter of recividism among their ranks. Already, <a href="http://www.semana.com/nacion/articulo/primer-ano-de-implementacion-del-acuerdo-de-paz-con-las-farc/548329">some former FARC combatants</a> have rejoined other armed factions. </p>
<p>Research shows that <a href="http://file.prio.no/publication_files/prio/Gates,%20Nyg%C3%A5rd,%20Trappeniers%20-%20Conflict%20Recurrence,%20Conflict%20Trends%202-2016.pdf">60 percent of civil wars relapse within seven years</a>. Historically, those opposed to peace accords have rearmed – as Jonas Savimbi did in the Angolan conflict <a href="https://www.eisa.org.za/wep/ang1992resultsa.htm">in 1992</a> – thus re-initiating violence between factions, or used targeted assassinations to upend peace negotiations.</p>
<p>Violence of the latter sort <a href="http://www.revistaarcadia.com/opinion/critica/articulo/armas-urnas-historia-genocidio-politico/22731">has already derailed more than one attempt to end Colombia’s conflict with the FARC</a>. If Colombia’s Congress keeps up its stall tactics, its country’s peace process may soon become just another statistic.</p><img src="https://counter.theconversation.com/content/87810/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fabio Andrés Díaz Pabón does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Conservative congressional reps in Colombia have been stalling votes on key parts of the country’s peace accords through endless petitions and nonstop debate. In short, they’re filibustering.Fabio Andrés Díaz Pabón, Researcher on Conflict, Peace and Development, International Institute of Social StudiesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/580542016-05-09T20:05:16Z2016-05-09T20:05:16ZFrom donkey votes to dog whistles, our election language has a long and political history<figure><img src="https://images.theconversation.com/files/121657/original/image-20160509-23386-ypn7v3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Candidate' has its roots in the word 'candid', to be frank. It's hard not to believe that we've strayed a little from those noble aspirations.</span> <span class="attribution"><span class="source">Cesare Maccari/Wikimedia Commons</span></span></figcaption></figure><p>We now know that July 2 will be the day when our politicians, in the words of Alfred Deakin, get dragged from the tart-shop screaming. </p>
<p>We’ll do our part to fill in the lengthy election coverage by looking at language and polly-talk. We’ll cast a close eye on how politicians use language to connect with voters, how language impacts our view of candidates, and, perhaps the most fun of all, the polly-waffles and linguistic stuff-ups along the way. More so, we’ll put political language in its historical and often slippery and weasely contexts. </p>
<p>The best place to start this coverage is the words that form the backdrop to the election. The origins of these stretch from Ancient Rome to the modern United States. But not to be outdone, Australia’s got its own series of words, and has made a few contributions to global political processes, too. </p>
<h2>The dazzling togas and open fields of Ancient Rome</h2>
<p>The 16th and 17th centuries saw hundreds of classical coinages flood into English. Many related to political aspects of life and were linked historically in different ways to gravitas. </p>
<p>Yet one recurring theme you’ll see in political words is a deterioration in their meanings. Links between foul play and politics have cast many of these words into the vast semantic abyss – if they didn’t already start their linguistic life there.</p>
<p><em>Candidate</em> is a relative of <em>candid</em> “frank”. Both go back to Latin <em>candidus</em>, “pure white, glistening”. In Ancient Rome those standing for election wore dazzling white togas. White (especially sheeny white) was the symbol of purity and light, freedom from evil intent and later freedom from bias. </p>
<p><em>Candid</em> is something we’d love our pollies to be, but bear in mind too that the Latin source also gave us <em>candida</em> the yeast-like parasitic fungus.</p>
<p><em>Campaign</em> goes back to Latin <em>campania</em>, “open field”, but the form that came into English (via French) comes from Italian <em>campagna</em>. The word took on a military specialisation – armies fought better in fine weather, and so when summer approached they emerged into the open countryside (or <em>campagna</em>) to do battle. This meaning of “military operation” gave rise to the political sense in the 1800s. </p>
<p>Interestingly, the word campaign is historically the same word as <em>champagne</em> (as a great filcher of vocabulary, English often swiped the same item more than once). So as you progress through this excruciatingly long <em>campaign</em>, know that you are linguistically justified in seeking solace in occasional glasses of bubbles.</p>
<p>Our final word of Latin pedigree is the little word <em>vote</em>. It derives from <em>vōtum</em>, a form of a Latin verb meaning “to solemnly promise”, and appeared in the English during 16th century with the meaning “grave undertaking” (a sense preserved in <em>vow</em>). </p>
<p>Out of this meaning developed a “wish, desire” sense, which then gave rise to the current election sense – the idea being that someone can signify their wishes by casting a ballot. Like so many words to do with politics, <em>vote</em> eventually took a cynical turn for the worse. In The Devil’s Dictionary (1911), Ambrose Bierce defines it as:</p>
<blockquote>
<p>The instrument and symbol of a freeman’s power to make a fool of himself and a wreck of his country. </p>
</blockquote>
<h2>The salamanders and swashbucklers of US politics</h2>
<p>American English has given us plenty of political curiosities. <em>Gerrymander</em>, used to describe the “dishonest manipulation of constituency boundaries”, shows the name of the 19th-century (corrupt) American politician, Elbridge Gerry (governor of Massachusetts) blended with <em>salamander</em>. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=628&fit=crop&dpr=1 600w, https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=628&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=628&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=789&fit=crop&dpr=1 754w, https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=789&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/63232/original/wx28372d-1414623275.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=789&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gerrymandering has been present in US politics since the 19th century.</span>
<span class="attribution"><span class="source">Elkanah Tisdale</span></span>
</figcaption>
</figure>
<p>The inspiration for the blend was the map showing the boundary changes introduced by Gerry – it resembled a salamander in shape.</p>
<p>Another rather lovely word that’s been making recent appearances on the Australian political scene is <em>filibuster</em>, “a parliamentary procedure where prolonged speaking delays or even thwarts a vote on a proposed piece of legislation”. </p>
<p>The word is a linguistic bitser. Historically it’s the same word as <em>freebooter</em> (someone who scores free booty) – both words go back to Dutch <em>vrijbuiter</em>. French adopted the word as <em>flibustier</em> and then passed it onto Spanish as <em>filibustero</em>. </p>
<p>English (“<a href="https://books.google.com.au/books?id=4djICT7zgGoC&printsec=frontcover&dq=isbn:1847654592&hl=en&sa=X&ved=0ahUKEwjm5e-EjqHMAhXG5qYKHQS7ApoQ6AEIHDAA#v=onepage&q&f=false">the vacuum cleaner of language</a>”) appears to have sucked up the word in all its different forms but the same meaning – both <em>freebooter</em> and <em>flibooter</em> appeared in the 16th century (“l’s” and “r’s” are notoriously unstable and swap places all the time – <em>grammar</em> and <em>glamour</em> is another doublet with the same origin); the French form <em>flibustier</em> arrived in 18th century and the Spanish form <em>filibuster</em> in the 19th century. </p>
<p>The current political sense first appeared in the US by the 1880s, in part aided by 19th-century military campaigns in Latin America, which were led by “unauthorised” US soldiers known as <em>filibusters</em>. This political sense has well and truly pushed out the earlier sense of “piratical adventurer”.</p>
<p><em>Pork barrelling</em> also acquired its political meanings in the US, but is now commonly used in Australia for those occasions where marginal seats are said to receive more funding than safe seats. Barrels of salted pork were once treasured larder items and good indicators of a household’s wellbeing, so it’s no surprise that <em>pork barrel</em> came to mean a supply of money. </p>
<p>In the 1800s it then extended to refer to any form of public spending to the community – it’s then that <em>pork barrel politics</em>, at least under this label, fell from grace.</p>
<h2>The donkeys and dixers of Australian politics</h2>
<p>Finally we leave you with three political D-words that Australia has gifted to the rest world. </p>
<p>There is the <em>donkey vote</em>, where voters allocate preferences in the order in which candidates’ names appear on the ballot paper, giving the top-listed candidate an advantage. In the past, when ballots listed candidates in alphabetical order, the first letter of a person’s surname <a href="https://books.google.com.au/books/about/The_Collins_Australian_Dictionary_of_Pol.html?id=65umAQAACAAJ&redir_esc=y">could impact</a> whether they were selected as a party’s candidate. </p>
<p><em>Dog-whistle politics</em> is a targeted political campaign message containing some kind of coded significance that will reach only sympathetic voters (just like the special high-pitched whistle used to train dogs is inaudible to humans). </p>
<p>The modern practice itself is rooted in American conservative politics. For instance, Richard Nixon <a href="http://www.amazon.com/Dog-Whistle-Politics-Appeals-Reinvented/dp/0199964270">used</a> the phrase “law and order” as a code for a tougher stance on race and anti-war protesters. Yet, the term <em>dog-whistling</em> is often linked to the Australian “<a href="http://www.theglobeandmail.com/news/politics/who-is-lynton-crosby-the-evil-genius-behind-harpers-campaign/article26331033/">master of the dark political arts</a>”, Lynton Crosby, who has led conservative campaigns in Australia, Britain and, most recently, Canada. </p>
<p>Finally, the <em>Dorothy Dix(er)</em> has been used in Australian politics since the 1940s to refer to a rehearsed question asked of a government minister by a backbencher to score political points. Curiously, the expression isn’t known in the US, even though Dorothy Dix was the pseudonym for the American writer, E.M. Gilmer, who apparently made up questions for her agony column. </p>
<p>We can compare this with <em>kangaroo ticket</em>, a political expression not known in Australia but used by Americans to describe a situation where the vice-presidential candidate has more appeal than the presidential candidate. Kangaroos have more weight in their bottom halves, and they also propel themselves using their back legs. </p>
<h2>Sorting the roosters from the feather dusters</h2>
<p>As our pollies hit the hustings, you might be interested to know that <em>husting</em> is the oldest political term in English. Originally, <em>hus-thing</em> (from 11th-century Norse) referred to a council comprising members of the king’s immediate household. </p>
<p>It was literally was a “house-thing”. The development to the current-day meaning of “election proceedings” involves a series of shifts too spectacular to go into here. </p>
<p>Perhaps another day – it’s going to be a long few months and we have to maintain the rage.</p><img src="https://counter.theconversation.com/content/58054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many of the most commonly used election terms have a long linguistic history, stretching from ancient Rome to modern-day America and Australia.Kate Burridge, Professor of Linguistics, Monash UniversityHoward Manns, Lecturer in Linguistics, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/555442016-03-03T11:19:41Z2016-03-03T11:19:41ZHow difficult would it be to repeal Obamacare for good?<p>If the leading Republican candidates agree on one thing, it’s doing away with Obamacare. </p>
<p>“The one thing we have to do is repeal and replace Obamacare,” <a href="http://www.ontheissues.org/2016/Donald_Trump_Health_Care.htm">Donald Trump has written</a> on his campaign website, while Marco Rubio <a href="https://marcorubio.com/sidebar-featured/marco-rubio-health-care-obamacare-repeal-replace/">has outlined his plan</a> to “Repeal Obamacare” and “replace it with a 21st century, market-driven alternative.” Likewise, Senator Ted Cruz <a href="https://youtu.be/LLnBsXp1Ce8?t=1m5s">emphatically declared</a> during the February 25 GOP debate that “As president, I will repeal every word of Obamacare.”</p>
<p>Is this the bombastic rhetoric of candidates trying to fire up their base? Or would Republicans actually be able to repeal Obamacare under a Republican president? </p>
<p>In short: yes, they could. But it wouldn’t be easy.</p>
<h2>The main GOP obstacle</h2>
<p>The essential requirement to achieve repeal is Republican control of the White House, the U.S. Senate and the House of Representatives in January 2017. </p>
<p>Unless both houses of Congress and the executive branch are under GOP control, Democrats would be able to block any repeal effort – and the Obamacare trench warfare that’s taken place since Democrats lost control of Congress in January 2011 would continue.</p>
<p>But even if Republicans control Congress and the White House, Senate Democrats could filibuster any legislation that repeals Obamacare. </p>
<p>Sixty senators must vote to close a <a href="http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">filibuster</a> – a Senate parliamentary tool designed to protect the rights of senators to slow or stall legislation and other matters. While, historically, filibusters took the form of long speeches on the Senate floor, these days it’s a less heroic procedural maneuver.</p>
<p>It’s unlikely that Republicans will have a 60-vote majority in the Senate in 2017. Meanwhile, Senate Democrats have been unanimous against repeal, and the number of Democrats in the chamber next year is predicted to increase over their current 46. </p>
<p>For this reason, even in if they’re in the minority, Democrats could block any straight repeal legislation and compel Republicans to resort to another path. </p>
<h2>Skirting the filibuster with reconciliation</h2>
<p>Republicans could then initiate an arcane legislative process called <a href="https://www.votetocracy.com/blog/what-is-reconciliation">budget reconciliation</a>. Invented in 1974 by the late West Virginia Senator Robert Byrd (arguably the shrewdest legislative tactician ever), budget reconciliation is a special legislative process that enables federal budget bills to be approved in an expedited fashion. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=792&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=792&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=792&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=996&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=996&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113624/original/image-20160302-25866-14rvf09.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=996&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Reconciliation is the brainchild of West Virginia Senator Robert Byrd.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/0/01/Robert_Byrd_Majority_Portrait.jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The advantage of reconciliation is that it permits a bill to be approved by 51 votes. (If Republicans hold 50 votes in the new Senate – a possibility – a Republican vice president can provide the 51st vote.) </p>
<p>Since reconciliation bills cannot be filibustered, any Obamacare repeal bill done using reconciliation wouldn’t need a 60-vote majority to proceed. And debate on a reconciliation bill is limited to 20 hours. For a frustrated Senate that doesn’t have a 60-plus vote filibuster-proof majority, it’s the most potent legislative shortcut imaginable.</p>
<p>But there’s a vital catch: any item in a reconciliation bill must have a measurable, direct impact on federal spending, up or down. </p>
<p>The individual who decides what legislative items do and do not conform to this rule is the Senate parliamentarian – the individual tasked with advising Senate leaders on the interpretation of Senate rules. Appointed by the Senate majority leader whenever the prior parliamentarian steps down, a former Senate librarian clerk named <a href="http://www.politico.com/story/2015/01/senate-parliamentarian-elizabeth-macdonough-obamacare-114274">Elizabeth MacDonough</a> currently holds the position. </p>
<p>A full ACA repeal bill would be deemed noncompliant by MacDonough and set aside because so many of its individual provisions do not have a significant budget impact. In a process known as the “Byrd bath,” Senators can challenge any entire bill, section, subsection, paragraph, sentence or word as “out of order,” meaning there is no significant budget impact. Items eliminated by the parliamentarian – called “Byrd droppings” – are removed from the bill.</p>
<p>But could Republicans then devise a partial – and critically damaging – ACA repeal bill that might pass muster with MacDonough or her successor?</p>
<p>Yes, they can. In fact, they’ve already done so.</p>
<h2>GOP shows it can be done</h2>
<p>This past December and January, the Senate and the House <a href="http://www.nbcnews.com/news/us-news/congress-send-obamacare-repeal-president-n491316">passed a reconciliation bill</a> that would have repealed fundamental building blocks of Obamacare, including subsidies to help moderate-income Americans afford health insurance and funds to expand Medicaid to low-income, uninsured individuals. </p>
<p>The Congressional Budget Office reviewed the proposal and determined that it would cancel insurance coverage for about <a href="https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr3762senatepassed.pdf">22 million Americans by 2018</a>. </p>
<p>When the bill reached President Obama’s desk, <a href="http://www.politico.com/story/2016/01/obama-vetoes-obamacare-repeal-bill-217505">he vetoed it</a>. On February 2, Groundhog Day, the House failed to override his veto – their <a href="http://www.cbsnews.com/news/house-unable-to-override-veto-of-obamacare-repeal/">63rd vote</a> to repeal all or part of the ACA – voting almost completely along party lines. </p>
<p>Some observers declared that vote <a href="http://thehill.com/blogs/floor-action/senate/261720-sanders-obamacare-repeal-bill-a-waste-of-time">a waste of time</a> because the outcome was known from the outset. This is erroneous.</p>
<p>Prior to the reconciliation bill passing the Senate this past December, many, including Senate Minority Leader Harry Reid, <a href="http://www.commonwealthfund.org/publications/newsletters/washington-health-policy-in-review/2015/nov/nov-16-2015/reconciliation-bill-cant-repeal-health-care-law-mandates">confidently predicted</a> that Republicans would never successfully navigate the treacherous and confounding reconciliation waters.</p>
<p>But they did.</p>
<p>As a result, congressional Republicans have demonstrated that they can achieve effective deconstruction and de facto ACA repeal using reconciliation. It’s no longer an idle threat. </p>
<p>Every 2016 Republican presidential candidate has publicly declared his or her support for complete ACA repeal. Of the eight ACA <a href="http://healthaffairs.org/blog/2015/09/18/what-would-republicans-do-instead-of-the-affordable-care-act/">replacement plans</a> advanced by members of Congress and conservative think tanks, all but one presume total or near total repeal. And it’s difficult to identify more than a handful of Republican members who express any reservations about repeal. </p>
<p>So if there were a Republican president in Obama’s place, could a GOP-controlled Congress repeal the ACA early next year?</p>
<p>Maybe and maybe not.</p>
<h2>A Senate majority in flux</h2>
<p>It’s likely that Republicans will return to the Senate next January with fewer than their current 54 votes – and may even lose their majority. </p>
<p>That is because, in recent times, presidential election years have attracted more Democrats and liberals than <a href="http://www.nytimes.com/2014/05/02/upshot/bursting-the-democrats-midterm-turnout-bubble.html">midterm election years</a>, which tend to result in more Republican, conservative leaning outcomes. Furthermore, Democrats have had notable success so far this cycle recruiting their top choices in key battleground states. Wisconsin Senator Russ Feingold is running for his old seat, while New Hampshire Governor Maggie Hassan now running against incumbent Republican Senator Kelly Ayotte. </p>
<p>Even more important, some Republicans appear to have supported January’s reconciliation bill precisely because they knew it would never become law.</p>
<p>One example is West Virginia Senator Shelley Moore Capito. Capito made it clear that she did not want to take <a href="http://dailysignal.com/2015/11/13/is-the-gop-giving-up-on-repealing-obamacare/">Medicaid away from 160,000 low-income West Virginians</a>. Other more moderate Republican senators – Maine’s Susan Collins, Illinois’ Mark Kirk, and New Hampshire’s Kelly Ayotte – might also think twice about voting to eliminate health coverage for vulnerable constituents for real.</p>
<p>Since President Obama signed the ACA in 2010, Republican Congressional leaders, especially House Speaker Paul Ryan, have cockily <a href="http://www.cnn.com/2016/01/06/politics/house-obamacare-paul-ryan-planned-parenthood/">promised</a> to move legislation to replace Obamacare. </p>
<p>It’s been six years of broken promises with their latest replacement show now underway. One reason for their inability is deep disagreement within the Republican conference about what could replace the ACA. </p>
<p>While Republicans find it easy to vote to repeal the law, their consensus vanishes when the topic turns to replacement. Look no further than the GOP debates, where candidates have been unable to articulate a consistent vision for health care policy beyond allowing the sale of health insurance across state lines and expanding high deductible health insurance policies.</p>
<p>So if Republicans capture the White House, Senate and House, will they repeal the ACA?</p>
<p>Maybe they can’t.</p><img src="https://counter.theconversation.com/content/55544/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John McDonough is a board director of Families USA, a 501(c)(3) non-profit health care advocacy organization based in Washington DC. He is also a board director of the Community Catalyst Action Fund, a 501(c)(4) non-profit health care advocacy organization based in Boston Massachusetts. Between 2008-10, he served as a Senior Advisor on National Health Reform in the U.S. Senate Committee on Health, Education, Labor and Pensions where he worked on the writing and passage of the Affordable Care Act. </span></em></p>The leading GOP candidates all claim one of their top priorities will be to repeal Obamacare. An architect of the original law outlines the thorny – but plausible – path to repeal.John McDonough, Professor of Public Health Practice, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/390112015-03-26T10:29:39Z2015-03-26T10:29:39ZFilibusters make for strange bedfellows<figure><img src="https://images.theconversation.com/files/75717/original/image-20150323-17716-1yfe9yz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Obama addresses a joint session of Congress in 2009 </span> <span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File:Obama_Health_Care_Speech_to_Joint_Session_of_Congress.jpg">Lawrence Jackson </a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>American humorist Will Rogers once quipped, “This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.” </p>
<p>Today the “hammer” seems to be the Congressional filibuster even though Congress doesn’t seem to exactly know what to do with this tool and often appears to be aiming for the foot.</p>
<p>Leaders, typically in the majority, complain about the filibuster – until they, having moved into the minority, seek to use it. </p>
<h2>Strange bedfellows seek to end filibusters</h2>
<p>The Senate’s use of the filibuster has played a critical role for more than 200 years. Time and again it has been used to protect the privileges of the minority, particularly the rights to debate and to offer amendments. Democracy, after all, requires a balancing of majority rule with the protection of the rights of the minority.</p>
<p>However, last month President Obama <a href="http://www.politico.com/story/2015/02/obama-end-routine-filibuster-115019.html">declared</a> that the use of the filibuster in the Senate “almost ensures greater gridlock and less clarity in terms of the positions of the parties.” He added, “There’s nothing in the Constitution that requires it.” </p>
<p>Republican House Majority Leader Kevin McCarthy seemed to jump into bed with the president when on NBC’s Meet the Press he <a href="http://www.nbcnews.com/meet-the-press/house-majority-leader-senate-should-change-filibuster-rules-n315171">called on</a> Senate Republicans to invoke the “nuclear option” to sweep away the filibuster. This would allow the majority to control the Senate much as is done in the House where debate and amendments are tightly restricted. </p>
<p>Conservative columnist Charles Krauthammer has demanded the abolition of the filibuster altogether, writing in the National Review: “Goodbye moderation and sweet reason. No more clinging to constitutional and procedural restraint. It’s time to go nuclear” and brush away the filibuster. </p>
<p>Senators from both parties, ranging from Democrat Elizabeth Warren to Republican Richard Shelby, have called for sweeping reforms and/or elimination of the filibuster.</p>
<h2>Senate remains in gridlock</h2>
<p>Republicans now control both houses of the 114th Congress. Yet the Senate still displays the kind of gridlock which characterized it during the Democratic-controlled 112th and 113th Congresses.</p>
<p>Back then, Senate Democrats and many observers blamed this gridlock on Republican abuse of the filibuster rules. Critics pointed to the 368 cloture votes required in those Congresses as evidence of Republican obstruction of the majority agenda. (Cloture votes are used by the majority to cut off debate and thus end a filibuster. A supermajority of 60 votes is necessary.) </p>
<h2>The use of the nuclear option</h2>
<p>Republicans and their allies bitterly criticized then-Majority Leader Harry Reid and his Democratic caucus for their legislative tactics. They objected to his use of a parliamentary procedure known as “filling the amendment tree” to block Republicans from offering amendments on the Senate floor. </p>
<p>They were most offended, however, by Reid’s use of the “nuclear option,” a controversial parliamentary slight-of-hand which allowed a simple majority (made up entirely of Democrats) to change the way the Senate’s cloture rule was interpreted. </p>
<p>By overturning a ruling by the Senate’s presiding officer, the Democrats changed the interpretation of its rule requiring a 3/5th supermajority of the Senate to a simple majority to end debate on presidential nominations (except for the Supreme Court). This became known as the “nuclear option.” </p>
<p>Frustrated by repeated and unjustified filibusters of President Obama’s judicial nominations, Democrats adopted this tragically flawed means to reach seemingly reasonable ends – although I believe those ends to be <a href="http://blog.constitutioncenter.org/2014/10/should-seats-on-the-supreme-court-be-left-to-the-presidents-party-alone/">misguided</a>. Thus, Democrats have now established the principle that a simple majority in the Senate can change any rule at any time.</p>
<p>Many Republicans vowed to reverse the nuclear option to restore the filibuster so as to avoid presidents stacking the courts when the president’s party has a majority in the Senate. Now that Republicans are the majority, they have apparently lost interest in doing so.</p>
<h2>Democrats have rediscovered the filibuster</h2>
<p>Democrats, who were understandably outraged by Republican overuse of the filibuster, have now themselves filibustered much of the legislation which the Republican leadership has brought to the Senate floor. They have thus forced a series of cloture votes as the Republican leadership has sought to cut off debate and end those filibusters. </p>
<p>Since convening on January 6, the Senate has already held 17 cloture votes. Democrats used the filibuster to delay passage of the Keystone Pipeline bill and forced an unprecedented cloture vote on the override of President Obama’s veto of that bill. Ending the filibuster would only take 60 votes, but overriding the president’s veto would take even more, 67. </p>
<p>A threatened filibuster was used to force Majority Leader Mitch McConnell to back down from his plans to have the Senate consider legislation to require congressional review of any comprehensive nuclear agreement with Iran. Democrats have even blocked cloture on the Justice for Victims of Trafficking Act in a battle over abortion language in that bill. </p>
<p>Perhaps most noteworthy, Democrats used the filibuster to force Republicans to strip language from the Homeland Security appropriations bill that had been designed to block President Obama’s executive orders protecting more than five million undocumented immigrants from deportation.</p>
<h2>Keep the nuclear option changes</h2>
<p>Many conservative leaders, taking the same position as many progressive organizations, <a href="http://www.washingtonexaminer.com/conservatives-dont-bring-back-filibuster/article/2555816">oppose</a> restoring the filibuster rule regarding nominations to its pre-nuclear option status. This would re-establish the requirement for 60 votes, rather than a simple majority, to end a filibuster on nominations. </p>
<p>Some Senate Republicans, including Finance Committee Chairman Orrin Hatch, simply want to hang on to the advantages which the Democrats seized with the nuclear option when they were the majority. </p>
<p>Hatch argued in a Wall Street Journal <a href="http://www.wsj.com/articles/orrin-g-hatch-and-c-boyden-gray-after-harry-reid-the-gop-shouldnt-unilaterally-disarm-1415232867">op-ed</a>:</p>
<blockquote>
<p>“The nuclear option allowed President Obama and his allies to reshape the judicial branch dramatically to suit their far-left agenda… It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult — if not impossible — if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.” </p>
</blockquote>
<h2>Both sides change their positions</h2>
<p>Two years ago as Democratic Majority Leader Harry Reid launched the nuclear option, Krauthammer had a different position. At that time, he <a href="http://www.washingtonpost.com/opinions/abolish-the-filibuster/2015/02/19/ca7d30d2-b86b-11e4-aa05-1ce812b3fdd2_story.html">complained,</a> “If a bare majority can change the fundamental rules that govern an institution, then there are no rules.” </p>
<p>Reid himself, just five years before invoking the nuclear option, decried the Republicans’ 2005 flirtation with this course of action, unequivocally declaring, “What the Republicans came up with was a way to change the country forever.” He went on to promise that the nuclear option would not be used, “as long as I am the leader…” He called the Republican threat to use it, “a black chapter in the history of the Senate” and declared he believed it would “ruin our country.”</p>
<p>Krauthammer and Reid are hardly alone in leaping from one side to the other on this issue. Then-senator Obama, on the Senate floor in 2005, declared, </p>
<blockquote>
<p>“The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.”</p>
</blockquote>
<p>Majority Leader McCarthy, too, has shown great “flexibility.” He called Senator Rand Paul’s 13-hour filibuster “fantastic.” </p>
<h2>Switching positions</h2>
<p>On this issue consistency is hard to find. </p>
<p>Among those standing up in defense of the Senate filibuster are former Senators Carl Levin, a Michigan Democrat, and Olympia Snowe, a Maine Republican. Arizona Republican Senator John McCain has been steadfast. During the 2005 battle, he and Snowe broke with Republicans calling for the nuclear option and both were among the “Gang of 14,” a bipartisan group of senators who fashioned a compromise to end the crisis. </p>
<p>In July 2013, McCain and Levin designed yet another bipartisan compromise to avoid the nuclear option. Democractic Senator Chuck Schumer <a href="http://talkingpointsmemo.com/dc/nuclear-option-averted-senators-strike-tentative-deal-to-confirm-nominees-without-reforming-filibuster">hailed </a>the agreement saying, “Senator McCain frankly initiated these calls because he was so eager to avoid having a blow up on the rules.” Schumer compared the prospect of a one-party rules change to “Armageddon.” </p>
<p>Four months later the Senate experienced that “Armageddon.” </p>
<p>Now some in McCain’s own party want to keep the changes brought about by the nuclear option to benefit their party by allowing a future Republican president to place his judicial nominees on the federal courts for life with only the support of his/her own majority in the Senate. Some others want to go farther and include Supreme Court nominees. Still others would like to eliminate the filibuster entirely, even for legislative matters.</p>
<p>McCain, however, has stood firm.</p>
<p><a href="http://thehill.com/homenews/senate/226398-republicans-clash-on-reversing-nuke-option">Asked </a>whether Republicans now in the majority should reverse the effects of the nuclear option, he declared, “I think it’s rank hypocrisy if we don’t… If we don’t, then disregard every bit of complaint that we made, not only after they did it but also during the campaign.” </p>
<p>He added, “I’m stunned that some people want to keep it.” </p>
<h2>What’s at stake</h2>
<p>It is critical to end the procedural firefight which can only lead to more extreme partisanship and gridlock. Each party should examine its own behavior and resist the temptation to escalate.</p>
<p>Like Senator McCain, I hope the Republicans will reverse the current inexplicable misinterpretation of the filibuster rules and avoid the near inevitable consequences, the eventual use of the nuclear option to eliminate filibusters. This would enable the Senate’s majority to run the Senate much as the majority controls the House of Representatives. </p>
<p>In these times of polarized partisan warfare in the Congress, it will be difficult but all the more important that senators in the majority defend the rules that protect minority rights and that senators in the minority avoid further abusing the filibuster.</p>
<p>One party rewiring the rules by simple majority fiat does not reduce partisanship, it exacerbates it.</p><img src="https://counter.theconversation.com/content/39011/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Arenberg has in the past received funding from the Dirksen Congressional Center. He currently serves on the Board of Directors of Social Security Works and the Board of Directors of the Social Security Works Education Fund. He is a Senior Congressional Fellow at the Stennis Center for Public Service Leadership.</span></em></p>When Republicans took over Congress, many observers predicted a goodbye to gridlock. Not so fast, however. Politicians say they hate filibusters – until they want to use them.Richard A. Arenberg, Adjunct Lecturer in Public Policy and Political Science, Brown UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/341022014-11-14T10:37:25Z2014-11-14T10:37:25ZThe nuclear option: does where you stand depend on where you sit?<p>Nearly a year ago, Senate Majority Leader Harry Reid pulled the trigger on a parliamentary maneuver many have labeled the “nuclear option.” Democrats were able to change the way Senate Rule XXII, which governs how filibusters can be ended, is interpreted in the Senate. The rule clearly states that a three-fifths vote, normally 60, is required. However, under the precedent established, this is taken to mean a simple majority (since a quorum is 51, anywhere from 26 to 51 votes) can end filibusters on presidential nominations, including judicial nominations below the Supreme Court.</p>
<p>Republicans were outraged. Republican Leader Mitch McConnell complained, “…[Democrats] believe that one set of rules should apply to them–and another set to everybody else…” He added that Democrats are “willing to do and say just about anything to get [their] way.” He called Reid, “the worst leader of the Senate ever” and accused Democrats of a <a href="http://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html">“power grab”</a>. </p>
<p>Only three Democrats in the Senate opposed the use of the nuclear option, Carl Levin (D-MI) who is retiring, Mark Pryor (D-AR) who was defeated for reelection and Joe Manchin (D-WV). Levin, on the Senate floor, quoted the late Senator Edward Kennedy, “Neither the Constitution, nor Senate Rules, nor Senate precedents, nor American history, provide any justification for selectively nullifying the <a href="http://www.levin.senate.gov/newsroom/speeches/speech/senate-floor-statement-on-proposed-nuclear-option">use of the filibuster”</a>. </p>
<p>Nonetheless, 52 Democratic senators joined in overturning a ruling by the President pro tempore Patrick Leahy to create the new precedent by using the nuclear option. The Democratic base demanded and applauded its use.</p>
<p>Democrats have already used their simple majority cloture to end debate on judicial nominations 69 times to place President Obama’s nominees on the federal bench for life.</p>
<h2>The tables have turned</h2>
<p>Now that Republicans have taken control of the Senate, Republicans who had previously decried the Democrats audacity have begun to oppose repairing the Senate’s rule. Conservative organizations are demanding payback. They want the GOP leadership to keep the new precedents in force so that the next Republican president (if he has a GOP majority) can swing the federal courts back in the other direction.</p>
<p>Orrin Hatch, who will become the next President pro tempore, co-authored a piece in the Wall Street Journal asserting, “The nuclear option allowed President Obama and his allies to reshape the judicial branch dramatically to suit their <a href="http://online.wsj.com/articles/orrin-g-hatch-and-c-boyden-gray-after-harry-reid-the-gop-shouldnt-unilaterally-disarm-141523286">far-left agenda</a>. </p>
<p>It’s clear what’s happening here. Senator Hatch who previously opposed the nuclear option, doesn’t even try to hide his motivations. He writes, "It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult–if not impossible–if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.” He concludes “Simply put, if Republicans re-establish the judicial-nomination filibuster, it would remain in place only until the moment that a new Democratic majority decided that discarding the [<a href="http://online.wsj.com/articles/orrin-g-hatch-and-c-boyden-gray-after-harry-reid-the-gop-shouldnt-unilaterally-disarm-1415232867">rule again would be useful”</a>. </p>
<h2>Are we in for more of the same?</h2>
<p>All of this lays bare why using the nuclear option to distort Rule XXII was a huge mistake. Throughout history, presidents have understood that the minority’s privileges under the rules in the Senate meant that they must take into account the views of minority senators. Typically, they selected nominees sufficiently within the mainstream to be acceptable to at least some senators on the other side of the aisle.</p>
<p>Now any president whose party is in the majority in the Senate can freely nominate partisan ideological choices with the confidence that the majority will back them. </p>
<p>Incoming Majority Leader McConnell has not said what he will do. He is an institutionalist who loves the Senate. In the past, he has suggested that Republicans might restore the precedent to reflect the plain language of the rule. Clearly, he is now being pressured by conservative leaders and groups to do the opposite. On the other hand, last November, as the Democrats pulled the trigger on the nuclear option, McConnell warned, “If you want to play games, set yet another precedent that you will no doubt come to regret… you will regret this, and you may <a href="http://online.wsj.com/articles/orrin-g-hatch-and-c-boyden-gray-after-harry-reid-the-gop-shouldnt-unilaterally-disarm-1415232867">regret it a lot sooner than you think.”</a></p>
<p>For the moment, Democrats left nomination of justices to the Supreme Court out. A supermajority of 60 votes is still necessary to end the debate and permit confirmation. However, the line drawn between other federal courts and the Supreme Court was likely drawn only because Reid did not have the necessary votes without it. It is nearly inevitable that erasure of that line awaits only the first time a president’s Supreme Court nominee is filibustered by a minority. The nuclear option would be quickly dusted off and employed again.</p>
<p>If Democrats and Republicans are able to place judges on the courts without any input from the minority, we will likely see a permanent politicization of our federal courts. Confidence in the system of justice rests on the impartiality of judges. Can this confidence survive a system which encourages partisan polarization of the courts?</p><img src="https://counter.theconversation.com/content/34102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Arenberg has in the past received a research grant from the Dirksen Congressional Center at the University of Illinois. He is affiliated with Social Security Works and the Social Security Works Education Fund.</span></em></p>Nearly a year ago, Senate Majority Leader Harry Reid pulled the trigger on a parliamentary maneuver many have labeled the “nuclear option.” Democrats were able to change the way Senate Rule XXII, which…Richard A. Arenberg, Adjunct Lecturer in Public Policy and Political Science, Brown UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/338892014-11-11T03:22:44Z2014-11-11T03:22:44ZUS votes for presidential vetoes, filibusters and partisan fractures<figure><img src="https://images.theconversation.com/files/64103/original/84hjr87j-1415597988.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Barack Obama has signed into law all but two of the bills to come before him, but is likely to use his power of presidential veto more often in the final two years of his term. </span> <span class="attribution"><span class="source">White House/Pete Souza</span></span></figcaption></figure><p>Perhaps no sentiment better defines the American political psyche than distrust of government. It prompted the <a href="http://www.democracyjournal.org/21/the-framers-constitution.php">constitutional framers</a> 226 years ago to create a system of national government that separates the executive and legislative branches and pits them against each other. Without consensual agreement from these adversaries nothing can proceed.</p>
<p>Two centuries later, the US system continues to stymie concerted governmental action. This is especially the case when different political parties control the Congress and the White House. In the unrelenting trench warfare of divided government, politicians often have more to gain by derailing the initiatives of the other party than by seeking co-operative, bipartisan outcomes.</p>
<p>Voters, despite being distrustful of unchecked power in Washington, want a government that can set aside differences and constructively tackle the nation’s problems. But who to blame and who to reward? Having suffered years of directionless politicking amid slow economic growth, foreign affairs crises, increasing threats of terrorism and the ongoing issue of porous borders, voters have felt neither Congress nor the president has a clear plan for governing.</p>
<p>Presidents are always the tallest poppy in voters’ minds, so Barack Obama’s <a href="http://www.politico.com/story/2014/10/poll-obama-approval-rating-111902.html">ratings have plummeted</a>. In last week’s midterm elections, voters <a href="http://www.economist.com/blogs/graphicdetail/2014/11/us-2014-mid-term-election-results">signalled disapproval</a> with the status quo – a majority punishing the incumbents from Obama’s Democratic Party. The result strengthened the Republicans’ majority in the House and, more importantly, gave them control of the Senate. </p>
<p>Now, voters’ actions seem to presume, the US can expect stronger, more unified legislative initiatives from the Republican-dominated Congress, and a humbled, more compliant president to support that agenda and “get things done”. In all likelihood, however, voters have only sharpened the knives of the combatants in Washington’s governmental streetfight.</p>
<h2>Presidential veto comes into play</h2>
<p>By giving control of the Senate to the Republicans, voters have virtually assured that <a href="http://www.theatlantic.com/politics/archive/2014/11/mitch-mcconnell-john-boehner-republican-agenda/382446/">contentious legislation</a> will regularly make it to Obama’s desk to be approved or rejected. Obama will repeatedly be forced to make politically charged, make-or-break decisions.</p>
<p>For the last two years, the Democratic Senate majority provided a circuit-breaker for House Speaker John Boehner’s conservative initiatives. Many of these were consciously designed to stymie Obama’s agenda, rescind his key policies and paint him with the brush of inaction. Because all legislation must be passed in identical language by both congressional chambers and then require presidential approval, Republican-authored House bills since 2010 which, for example, would have destroyed Obama’s health care reforms, have merely been rejected by the Senate.</p>
<p>Now, with a unified Republican Congress, the same bills will be passed by the Senate and presented to the president. Obama must either relent or rely on his veto power to knock-back Republican legislation. The minority ranks of Senate Democrats, having lost their power to checkmate the House, will be tempted to dust off the <a href="https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm">filibuster</a> as a way to stall Republican initiatives.</p>
<p>In a climate of public disdain for government inertia, both tactics may well fuel voter cynicism. But with few strategic options on their plates, the Democrats face an undesirable duality: attempt to negotiate piecemeal amendments that might soften key Republican policies, or embrace the politics of logjam.</p>
<p>Fired up by their midterm gains, Republicans will be in no mood to play bipartisan footsie with Democrats in committees to accommodate their concerns. And Obama has already drawn a line in the sand: he will only sign bills that make reasonable adjustments to his policies, but will veto anything more invasive.</p>
<h2>When numbers are against you, filibuster</h2>
<p>If presidential vetoes force Congress to slow down and assemble larger majority support for legislation, the Senate filibuster is obstructionism, pure and simple. </p>
<p>As the Senate was designed in part to be a check on the House of Representatives, senators were unelected members (until the <a href="http://www.archives.gov/legislative/features/17th-amendment/">17th Amendment</a> in 1913) who were given the right to unlimited debate on the Senate floor. The elected rabble in the House, for more than 150 years, has had to live with strict guidelines for debating each bill on the floor of that chamber.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=896&fit=crop&dpr=1 600w, https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=896&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=896&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1126&fit=crop&dpr=1 754w, https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1126&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/64108/original/b4ssz832-1415599965.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1126&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Veteran South Carolina senator Strom Thurmond holds the record for a filibustering speech, clocking in at 24 hours and 18 minutes.</span>
<span class="attribution"><span class="source">Library of Congress</span></span>
</figcaption>
</figure>
<p>Without approval of three-fifths of the Senate membership (60 votes) to invoke “cloture” and force a cessation of debate and bring the bill to a vote, those holding the floor can theoretically, as Americans put it, talk ‘til the cows come home. Perhaps most famously, southern senators attempted, albeit unsuccessfully, to block the Civil Rights Act of 1964 with a 75-hour filibuster, including a 14-hour address by one senator.</p>
<p>Because most bills are considered within tight time limits, given congressional recesses and the press of other legislation, filibusters can block vital votes and stymie the Senate leadership’s agenda. However, as with presidential vetoes, filibusters look to voters like the last refuge of those fighting a losing battle. Democratic senators will need to choose their obstructionist moments wisely, lest they incur the wrath of voters who want action from the Congress.</p>
<p>Yet, with the US split along partisan lines, Democrats have strong incentives to resist the will of Republican leaders and risk further deepening voters’ cynicism about inertia in Washington. </p>
<h2>Confrontation carries risks for both parties</h2>
<p>All told, the next two years promise even sharper divisions in the stridently partisan politics on Capitol Hill and Pennsylvania Avenue. The presidential veto and Senate filibuster look certain to be routinely employed. What are the political costs and benefits of these options?</p>
<p>US presidents have little formal role in passing legislation. Though their leadership and political sway is vital in the passing of many bills – “Obamacare”, for instance – only once the House and Senate have passed bills can presidents can sign or veto them. Congress can either amend vetoed legislation to meet a president’s objections or pass it into law over a president’s veto by securing two-thirds votes in both chambers.</p>
<p>Because the Senate will have only a narrow Republican majority, the required 67 votes to override are a near-insurmountable hurdle. As a consequence, Republicans must be careful in proposing legislation on which Obama’s veto will prevail. He will be able to taunt GOP leaders for failing to build strong majority support for their bill.</p>
<p>Republicans, for their part, may be content to bombard the White House with unviable bills they contend are vital for the nation and blame Obama for inaction. This is a dangerous tactic though. Surveys showed that this sort of brinkmanship backfired during the <a href="https://theconversation.com/where-to-from-here-the-post-shutdown-state-of-us-politics-19238">budget shutdown of 2013</a> – a strong majority of voters saw the Republicans as responsible for the obstruction of government duties.</p>
<p>Some of this gambit is inevitable, though, as Republicans attempt to portray Oval Office naysaying as evidence of the need to elect a Republican president in 2016. Obama, for his part, seems certain to use his veto power more than the <a href="http://www.senate.gov/reference/Legislation/Vetoes/vetoCounts.htm">two times</a> he has to date. </p>
<p>With the ability to use the mass media to make a case for knocking back a bill, presidents are well armed to resist the will of Congress. Historically, Congress has overridden only 10% of vetoed bills. </p>
<p>But presidents, especially those in their final term, seek to forge a legacy of positive contributions to the nation’s fortunes. Though Obama will clearly use the veto to protect his health care and other key policies, he will not want his last years in the Oval Office to be dominated by rear-guard actions to defend his legacy.</p>
<p>In the lead-up to the 2016 presidential election, frustrated American voters will need to decide if they want to elect a Republican president to promote at least a semblance of unity in the federal government. The alternative is to chastise the Republican leadership for its legislative fisticuffs and return the Senate to Democratic control and retain the Democrats’ hold on the White House.</p>
<p>With <a href="http://www.salon.com/2014/10/28/tea_partys_intensified_war_why_the_gops_happy_time_is_about_to_end/">deep divisions in Republican ranks</a> between Tea Party conservatives and fiscal pragmatists, a Republican-controlled government might prove no less fractious than Bill Clinton’s precarious Democratic façade between 1992 and 1994.</p>
<p>For now though, with a common presidential “enemy” to unite Republicans, who are unlikely to lose their House majority in 2016, the one certainty for the twilight years of the Obama administration, and likely after the next election, is that the politics of partisan divide will continue. The slippery slope of voters’ declining trust in Washington will remain a defining sentiment in US politics.</p><img src="https://counter.theconversation.com/content/33889/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Denemark does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Perhaps no sentiment better defines the American political psyche than distrust of government. It prompted the constitutional framers 226 years ago to create a system of national government that separates…David Denemark, Professor of Political Science and International Relations, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.