With concern mounting for an Election Day disaster that could cost the Republicans both the presidency and the Senate majority, Senate Majority Leader Mitch McConnell is now calling on Democrats to protect the filibuster if they take over.
McConnell falls back on an old institutional argument—that Democratic Senators may want to use the filibuster when they are in the minority in the future. But Democrats would be wise to ignore McConnell's advice. The party and its members are much more likely to pay a price for an inability to actually get laws passed than garner much benefit in stopping Republican changes in some unknown future fight.
The filibuster, a rule that was likely adopted by accident in the early days of the Republic, has constantly morphed over the years. While it is famously viewed as a way for minorities to have their say, its most prominent use was by Southern Senators stopping Civil Rights legislation.
Over time, the power of the filibuster has been whittled down. Originally, there was no way for the majority to end one. During World War I, the Senate adopted a rule where 2/3rds of the present Senators could vote to invoke "cloture" – and end the debate. This rule was changed to require the vote of 2/3rds of all Senators, then changed back. In the 1970s, a new rule was put in place where only 60 votes were needed, but the change also allowed for a two-track system. Filibuster no longer shut down work in the Senate – the Senate instead went about its regular business until the majority could get 60 votes. This reform has been seen as potentially poor one, as now there was little penalty for launching a filibuster.
The growing political battles over Supreme Court and lower court judicial nominations led to critical changes in the filibuster. The Democrats filibuster of judicial nominees in 2005 led to discussion of a "nuclear option"—with Republicans proposing a rule that the filibuster of judicial nominees were unconstitutional. This led to a temporary deal. In 2013, the Democrats used the "nuclear option" to end the continuing filibusters of district court and appellate judges and other executive branch nominees. When Republicans regained power under Trump, they expanded the filibuster exception to the Supreme Court nominees, which allowed them to confirm Justice Neil Gorsuch.
Since the Clinton Administration, the Democrats have paid the price of the filibuster. The looming filibuster was a strong obstacle to Bill Clinton's doomed healthcare reform plan. They were only able to pass Obamacare due to the fact that they briefly had a 60 vote majority – and when they lost it following the death of Senator Ted Kennedy, the House was unable to vote on amendments to the bill. But they have not received much benefit for it as a member of the minority.
The Republicans arguably haven't taken the same hit from the filibuster. Due to other rules, the tax cut legislation at the heart of both the Bush and Trump agendas did not require 60 votes so long as cuts "sunset" in 10 years.
Under Trump, even when they had the majority in both houses, the Republicans have appeared to be less interested in pushing through legislation. According to a Pew Research survey, the amount of substantive legislation from the first two years of Trump in the 115th Congress, where the Republicans controlled all of Congress and the presidency was nearly the same as the 114th, when Obama was forced to co-exist with a Republican-dominated House and Senate. The problem can be seen due to the fact that the party was unable to garner even 50 votes from the GOP for a version of their long-promised Obamacare repeal bill. With Democrats in control of the House, Trump has focused almost exclusively on changing the law with Executive Orders, while the McConnell has instead put his energy into approving judges.
The Republicans' failure to get much in the way of substantive legislation completed certainly did not help them at the ballot box in 2018, when they lost the House. Democrats should take that to heart. As a majority party, voters do not seem to be impressed with the argument that you were unable to achieve any goals because of an inability to overcome a supermajority rule that is in place because of your own choice. This will be doubly so in the future, since McConnell and the Republicans seemed to be able to easily sweep away the filibuster when they needed to confirm two Supreme Court Justices.
For Democrats, who have had full control of Congress and the presidency for only four of the last forty years, a failure to take advantage would be seen as a disaster. Democratic Senators looking to draft substantive laws should not let the potential "joys" of having some power in a future minority role serve as a deterrent to drafting meaningful legislation now. The Democrats shouldn't need to take any advice that starts with "don't listen to Mitch McConnell." With the filibuster, the only real beneficiary of its continuation is McConnell.
Joshua Spivak is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York. He blogs at The Recall Elections Blog.
The views expressed in this article are the author's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
