Filibusters make for strange bedfellows

President Obama addresses a joint session of Congress in 2009 Lawrence Jackson , CC BY-SA

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.”

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.

Leaders, typically in the majority, complain about the filibuster – until they, having moved into the minority, seek to use it.

Strange bedfellows seek to end filibusters

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.

However, last month President Obama declared 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.”

Republican House Majority Leader Kevin McCarthy seemed to jump into bed with the president when on NBC’s Meet the Press he called on 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.

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.

Senators from both parties, ranging from Democrat Elizabeth Warren to Republican Richard Shelby, have called for sweeping reforms and/or elimination of the filibuster.

Senate remains in gridlock

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.

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.)

The use of the nuclear option

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.

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.

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.”

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 misguided. Thus, Democrats have now established the principle that a simple majority in the Senate can change any rule at any time.

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.

Democrats have rediscovered the filibuster

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.

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.

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.

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.

Keep the nuclear option changes

Many conservative leaders, taking the same position as many progressive organizations, oppose 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.

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.

Hatch argued in a Wall Street Journal op-ed:

“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.”

Both sides change their positions

Two years ago as Democratic Majority Leader Harry Reid launched the nuclear option, Krauthammer had a different position. At that time, he complained, “If a bare majority can change the fundamental rules that govern an institution, then there are no rules.”

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.”

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,

“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.”

Majority Leader McCarthy, too, has shown great “flexibility.” He called Senator Rand Paul’s 13-hour filibuster “fantastic.”

Switching positions

On this issue consistency is hard to find.

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.

In July 2013, McCain and Levin designed yet another bipartisan compromise to avoid the nuclear option. Democractic Senator Chuck Schumer hailed 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.”

Four months later the Senate experienced that “Armageddon.”

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.

McCain, however, has stood firm.

Asked 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.”

He added, “I’m stunned that some people want to keep it.”

What’s at stake

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.

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.

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.

One party rewiring the rules by simple majority fiat does not reduce partisanship, it exacerbates it.

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