Death of the Filibuster?

Senate Majority Leader Mitch McConnell’s use of the nuclear option to change Senate rules and limit debate time for most nominees could make it impossible for Senators to speak against nominees favored by their own party’s leadership and it could set a precedent that could end the legislative filibuster enabling the Senate to ram through statist legislation like gun control, nationalized health care, massive spending and tax increases, and even bills like the Green New Deal.

Joshua Huder, writing for legbranch.org explains:

The House worked legislation through its standing rules for long stretches of its history. But in the early 1880s that began to change. The minority had grown extremely adept at delaying tactics. Motions, roll calls, disappearing quorums, and more were all commonly used to obstruct the House from doing business. These motions and tactics were eventually enough to effectively create a filibuster in the House, though no right to unlimited debate was recognized there as it was in the Senate.

This obstruction sparked a controversial move in 1882. Democrats wanted to stop the consideration of Joseph Wheeler’s election case. Wheeler, a Democrat, had challenged the results of the election in 1880 and won after a judge invalidated 600 votes for his opponent, William Lowe. However, after a recount, the House took up the case on May 29 with the intent to supplant Wheeler with Lowe, a Greenback. Democrats did not want to consider the case and used every conceivable tactic to delay.

Mid-debate, Rep. Thomas Brackett Reed (R-ME) reported a resolution from the Rules Committee limiting motions to a single motion to adjourn involving election cases. Effectively, it was a resolution to change the rules, limiting motions available to members, by a simple majority. In practice, it was the first special rule reported by the Rules Committee. Democrats fervently objected but Reed’s move was upheld by the Speaker and the House, creating a precedent that eventually grew into common practice. In the months after the resolution, the House issued its first special rule on legislation, limiting debate on the Mongrel Tariff on the last day of Congress in 1883. A few years later, special orders in the House were used to schedule almost two weeks of debate. What began as a minor rule change later transformed debate on major bills in the House.

This history is relevant to the Senate’s consideration of its rule change. Majority Leader McConnell will soon forward a simple resolution, authored by Senators Roy Blunt (R-MO) and James Lankford (R-OK), to change the rules to limit post-cloture debate to two hours on nominees (except cabinet and Supreme Court nominations). Passing this rules change will likely require a nuclear trigger. If McConnell cannot get enough Democrats to cut off debate via cloture, he will establish a precedent that cloture may be invoked by a simple majority to change the rules. Meaning, a majority can change Senate rules via a simple resolution. If this is starting to sound like the Wheeler elections case in 1882, it should.

While the rule change itself is relatively small, the consequences of this maneuver could be transformative. McConnell is using a legislative vehicle to change Senate rules outside of the normal two-thirds required. Creating a precedent privileging simple resolutions to change the rules mimics the House development limiting debate in the early 1880s. Functionally, McConnell’s precedent would create a special rule process in the Senate. And if passed, it could mark the beginning of the end of the legislative filibuster.

This is not likely how many observers expected the legislative filibuster to be destroyed. Many observers have anticipated a dramatic procedural standoff on the Senate floor. But this change is actually much more convenient. Rather than a dramatic procedural standoff, the Senate will create a process that makes the filibuster and Rule XXII irrelevant, in the same way that House rules are broadly irrelevant to that chamber’s proceedings. The cloture rule will still be on the books, it will simply be ignored by a majority whenever it wants to pass a bill.

Read the whole piece here.

And read former Republican Senate staffer Michael Hammond on the folly of getting rid of the filibuster here.