NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, April 6th, 2017

Kudos to Senate Democrats for forcing Mitch McConnell to gut his precious filibuster

We need to restore the norms and tra­di­tions of the Sen­ate and get past this unprece­dent­ed par­ti­san fil­i­buster.

– Mitch “Fil­i­buster” McConnell, speak­ing ear­li­er today

The man who staged an unprece­dent­ed num­ber of par­ti­san fil­i­busters of exec­u­tive and judi­cial nom­i­nees dur­ing Barack Oba­ma’s pres­i­den­cy today pulled the trig­ger on the so-called “nuclear option”, mar­shal­ing Sen­ate Repub­li­cans to vote in favor of a Sen­ate rules change that elim­i­nates the fil­i­buster for Supreme Court nom­i­nees.

As a result of the rules change, the thresh­old for pro­ceed­ing to a vote on a Supreme Court nom­i­nee in the future will be a sim­ple major­i­ty of the Sen­ate’s one hun­dred mem­bers, as opposed to three fifths of the Sen­ate (six­ty votes).

By refus­ing to vote to end debate on Neil Gor­such’s nom­i­na­tion, Democ­rats have forced Mitch McConnell and the Sen­ate Repub­li­cans to weak­en the fil­i­buster them­selves and restore major­i­ty rule to the Unit­ed States Sen­ate.

Democ­rats deserve to be com­mend­ed for refus­ing to back down. In an impres­sive show of uni­ty, the core of the cau­cus backed McConnell into a cor­ner, leav­ing him with two unpalat­able options: gut his pre­cious fil­i­buster to get Gor­such con­firmed, or for­get about get­ting Gor­such con­firmed. McConnell chose the for­mer and was able to whip every mem­ber of his cau­cus to vote the way he want­ed, even those mem­bers of the cau­cus squea­mish about set­ting a new prece­dent.

Obvi­ous­ly, the pend­ing con­fir­ma­tion of Neil Gor­such is a bad out­come for the coun­try (a very bad out­come), but the sil­ver lin­ing of today’s action by McConnell is that the next time Democ­rats con­trol the White House and the Sen­ate, Repub­li­cans will be unable to fil­i­buster any nom­i­nees, includ­ing Supreme Court nom­i­nees. Their most prized weapon of obstruc­tion will no longer be avail­able to them.

The next step along this path is the evis­cer­a­tion of the fil­i­buster for leg­is­la­tion.

McConnell and the Repub­li­cans just demon­strat­ed they’re will­ing to gut the fil­i­buster to push through Neil Gor­such. They want their short term wins, and hang the long term con­se­quences. That’s the kind of mind­set that could lead to the com­plete or near-total abo­li­tion of the fil­i­buster by 2020.

As we have not­ed here on the Cas­ca­dia Advo­cate many times, the fil­i­buster is not a com­po­nent of our plan of gov­ern­ment. The Unit­ed States Con­sti­tu­tion does not give the minor­i­ty par­ty in the Sen­ate a right to fil­i­buster. Rather, the fil­i­buster became a fix­ture of the Unit­ed States Sen­ate through cus­tom and tra­di­tion.

After Barack Oba­ma became Pres­i­dent of the Unit­ed States, Repub­li­cans began abus­ing the fil­i­buster in an attempt to block any­thing and every­thing. This went on for years, until Democ­rats got so sick of it that they vot­ed to alter the rules of the Sen­ate to exempt exec­u­tive and low­er lev­el judi­cial nom­i­nees from the fil­i­buster.

Filibuster abuse in context

McConnell threw a huge fit at the time and warned Demo­c­ra­t­ic sen­a­tors that they would regret their actions. But what’s to regret? Democ­rats did a great thing by act­ing to make the Unit­ed States Sen­ate func­tion more demo­c­ra­t­i­cal­ly. And now, with the shoe on the oth­er foot, Repub­li­cans are doing the same thing.

A key prin­ci­ple of any demo­c­ra­t­ic coun­try is major­i­ty rule with minor­i­ty rights. We require the con­sent of the minor­i­ty to change our plan of gov­ern­ment, and jus­ti­fi­ably so, but our Founders intend­ed for the Con­gress of the Unit­ed States to con­duct its pro­ceed­ings by major­i­ty vote.

In The Fed­er­al­ist No. 22, Alexan­der Hamil­ton writes:

[W]hat at first sight may seem a rem­e­dy, is, in real­i­ty, a poi­son. To give a minor­i­ty a neg­a­tive upon the major­i­ty (which is always the case where more than a major­i­ty is req­ui­site to a deci­sion), is, in its ten­den­cy, to sub­ject the sense of the greater num­ber to that of the less­er. Con­gress, from the nonat­ten­dance of a few States, have been fre­quent­ly in the sit­u­a­tion of a Pol­ish diet, where a sin­gle VOTE has been suf­fi­cient to put a stop to all their move­ments.

The fil­i­buster as we know it today did not become a fix­ture of the Unit­ed States Sen­ate until after our nation’s Founders had passed on. The word itself did­n’t become a part of the coun­try’s polit­i­cal lex­i­con until sev­er­al decades lat­er.

“The entire process rests upon the Sen­ate’s pride in itself as the world’s fore­most cham­ber of enlight­ened debate,” writes William Safire in Safire’s Polit­i­cal Dic­tio­nary, launch­ing into a brief his­to­ry of the talk­ing fil­i­buster.

“Until 1917, speech­es could go on and on, and pre­vent­ing mea­sures from being brought to a vote. Then, in reac­tion to the lit­tle group of will­ful men who had fil­i­bus­tered to death Woodrow Wilson’s pro­pos­al to deter U‑Boat attacks by arm­ing mer­chant ves­sels, the Sen­ate adopt­ed Rule 22, which pro­vid­ed for clo­ture (more often used than clo­sure), a two-thirds vote to end debate (amend­ed to three-fifths in 1975). Fil­i­busters are not pos­si­ble in the House of Rep­re­sen­ta­tives, where the rules lim­it the dura­tion of any indi­vid­u­al’s right to speak, or in Great Britain’s House of Com­mons, where Rule 20 per­mits the Speak­er to direct a mem­ber ‘who per­sists in irrel­e­vance’ to ‘dis­con­tin­ue his speech.’ ”

In March of 2005, Repub­li­cans (who con­trolled the Sen­ate at the time, as they do now), threat­ened to “go nuclear” to pre­vent Democ­rats from block­ing votes on some of George W. Bush’s nom­i­nees. But before that hap­pened, a bipar­ti­san “Gang of Four­teen” struck a deal allow­ing con­fir­ma­tion votes to be held on some nom­i­na­tions in exchange for a pledge to leave the fil­i­buster intact.

The fil­i­buster’s days were num­bered after that.

It is worth remem­ber­ing that many Repub­li­cans who served dur­ing the Bush years were very much in favor of restor­ing major­i­ty rule to the Unit­ed States Sen­ate and end­ing fil­i­busters of pres­i­den­tial nom­i­na­tions.

“This is a mat­ter of the rules of the Sen­ate, which sets its own rules,” for­mer Repub­li­can Major­i­ty Leader Trent Lott told Safire pri­or to the pub­li­ca­tion of the lat­est edi­tion of his Polit­i­cal Dic­tio­nary. “I pre­fer call­ing it the ‘con­sti­tu­tion­al option.’ The oth­er side is act­ing like we’re going to blow the place up.”

The Sen­ate will sur­vive today’s rules change, just as it sur­vived pre­vi­ous rules changes. The demise of the fil­i­buster for Supreme Court nom­i­na­tions is not the sad aspect of today’s devel­op­ments. What’s sad is that Repub­li­cans were dri­ven to do it by a fer­vent desire to put a man on the Supreme Court who can be count­ed upon to weak­en the rights and free­doms of work­ing Amer­i­cans for decades to come.

PREVIOUSLY: Sen­ate Democ­rats must fil­i­buster Trump’s Supreme Court nom­i­nee

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