The Third Nuclear Option: Ending The Legislative Filibuster

Is this really the way citizens want the Senate to work?

A second nuke is about to be dropped in the Senate. Metaphorically, of course. Democrats are about to mount a filibuster against Donald Trump’s Supreme Court nominee, and in response Republicans are about to do completely away with the ability of the Senate to filibuster Supreme Court nominees. That all seems certain, at this point. But it does raise a larger question: is the practice of filibustering legislation also in danger of extinction?

Most people don’t fully understand the filibuster, which isn’t all that surprising seeing as how it’s an arcane segment of a larger (and much more arcane) set of rules, which dictate how the Senate does its business. The filibuster is a parliamentary procedure, and all such procedures are agreed upon by the Senate as their first order of business after a new Congress is seated. None of this is set in stone, no matter how long or storied a history it may have in the chamber. The filibuster is not in the Constitution. It is merely a tactic the Senate has gotten used to using, which means it can be changed at any time.

Filibusters were incredibly rare in the first century of American government, and didn’t really become normal in any big way until the 1970s. Previous to that, filibusters were only mounted on significant pieces of legislation. They were also the famous “talking filibusters” that we all remember from seeing Jimmy Stewart in Mr. Smith Goes To Washington. A senator had to talk endlessly, because that was the definition of the filibuster at the time. Also at the time, a two-thirds vote was necessary to stop a filibuster (which, today, would be 67 votes).

The Senate made two major changes to these rules in the 1970s, lowering the bar to overcome a filibuster to three-fifths (60 votes), and removing the test of oratory stamina. Henceforth filibusters would be automatic rather than a marathon speechifyin’ session. The vote would be held, and if there weren’t 60 votes to move forward on it, the issue would just die. A few stalwarts in recent years have mounted real talking “filibusters” (one of them, by Ted Cruz, wasn’t technically even a filibuster), but for the most part it is now a painless and automatic process. Both of these changes show that the filibuster is whatever the Senate defines it to be, in its own rules-making process. It’s not like you need a constitutional amendment to change it, in other words.

Probably because of these changes in large part, the use of filibusters has grown enormously since the 1970s. Both parties have added to this growth, because how you see the filibuster depends on whether you’re in the Senate’s majority or not. When in the minority, filibusters are seen as absolutely necessary. When in the majority, not so much.

The last time the Republicans were in the minority, the use of the filibuster hit all-time highs. Pretty much any bill of any import had to get over the 60-vote hurdle, sometimes multiple times. The use had gotten so painless and automatic that it became downright routine. Now that Democrats are in the minority, they’re looking for payback, meaning for the foreseeable future any important bill will need 60 votes to make it through the Senate. Bills don’t even have to be all that important, in actuality, because the automatic filibuster is so baked into the cake that any bill more impactful than naming a post office will now likely have to clear this bar.

So the question becomes: is this really the way the citizens want the Senate to work? With the partisan divide so stark right now, it is incredibly hard for either party to gain a 60-seat majority. But if we need 60 votes to get anything done, doesn’t that mean that nothing much of anything will get done? That’s the way it has worked for the past few years, so it’s valid to raise the question of whether that’s the way people want the Senate to work or not.

A few years ago, when Barack Obama was president and Harry Reid led the majority in the Senate, Republicans blocked so many of Obama’s judicial and executive appointments that the first “nuclear option” was used. Reid denied Republicans the ability to filibuster any appointees, including judges (but not including Supreme Court justices). Any presidential appointment up to (but not including) Supreme Court nominees would be approved by a simple majority vote. This idea had actually been floated by Republicans previously (back when George W. Bush was president), but back then a bipartisan “Gang of Fourteen” agreed to stop the worst abuses of the filibuster to get Bush’s appointments through. But by the time of Obama and Reid, there was no such bipartisan effort, so Harry was forced into dropping the nuke.

Mitch McConnell is about to drop the second such nuke. Democrats are rightly incensed that Republicans denied Barack Obama his constitutional right to name a justice to the Supreme Court, and so will be trying to stop Donald Trump’s nominee with everything they’ve got. McConnell is reportedly trying to convince Democrats that they should really save their filibustering for Trump’s next nominee, who could change the balance of the court. This, though, is a distinction without a difference to Democrats. Whether the nuke is dropped now or then, it’s very likely going to be dropped, so what difference does it make when it happens? A McConnell promise not to drop it on a second nominee is pretty worthless, in other words, so Democrats shouldn’t fall for this losing bargain because it’s likely a trap.

When McConnell drops this second nuke, all presidential nominees ― including Supreme Court picks ― will be confirmed by a majority vote in the Senate. Will this change the basic structure of government all that much? So far, the fallout from Harry Reid’s nuke hasn’t been all that noticeable. Trump’s cabinet mostly got confirmed, but most new presidents also see their cabinets confirmed with only a few rejections.

The third nuclear option, however, would have much more far-reaching consequences. Historically, the Senate has functioned as a “saucer to cool heated legislation from the House.” There are many versions of this quote, supposedly said by George Washington to Thomas Jefferson, back in the days when saucers were actually used on a regular basis (you got a hot beverage in a cup, then poured it into your saucer and blew on it to cool it before drinking). The House would always have its hotheads, but the Senate would calm things down and soberly pare down legislation to remove the more heated bits. Back then, though, senators were appointed by their state legislatures, and not directly elected.

That sober-minded ideal has been changing a lot over the past two decades. Back when Newt Gingrich took over the House, there were still enough senators that cared deeply about the institutional stature of the Senate to thwart much of Gingrich’s “revolution.” Even the Gang of Fourteen proved that this feeling still existed in the early 2000s. But since that time, there has been a lot of turnover in the Senate, and now the arguments there are just as hotheaded as in the House.

This is where you can take the argument one of two ways. Either the legislative filibuster is more crucially important now than ever, or the filibuster is a historical hangover which is doomed to extinction. The “out” party (Democrats, currently) relies on the filibuster as their only chance to stop extreme legislation. The “in” party hates being thwarted in such fashion. But encroachments on the minority party already exist, in the form of budget “reconciliation” bills, which cannot be filibustered (but also have to be limited to only dealing with budgetary matters). So the legislative filibuster already has cracks in it.

Not a whole lot gets done in the Senate these days. They’re about to debate yet another “continuing resolution” for the budget, which in layman’s terms means it has been years since the normal process of enacting a budget has been successfully completed. Budget bills never make it through the Senate, so instead they just leave the government spending largely on autopilot, and tinker a bit with continuing resolutions or other omnibus bills. The Senate has been stuck in almost complete legislative gridlock since the Patient Protection and Affordable Care Act was passed, in fact. The number of important bills passed each year since then can usually be counted on the fingers of one hand.

Is this what the American people deserve from their government? A Senate so mired in quicksand that nothing much ever happens unless a sword of doom is hanging over their heads (in the form of a government shutdown or fiscal cliff)? Because that’s what we’ve got now. Democrats see this as a good thing, currently, but they didn’t see it the same way when they were in power. The same is true for the Republicans, if you just reverse the order of that previous sentence.

So what do Americans really want? A government that only moves when the threat of inaction becomes so politically perilous that partisanship has to be set at least partially aside? Or a government that moves so quickly that we’ll travel from one party’s extreme laws to the other, as the balance of power shifts in Congress? If the third nuke is eventually dropped, the pace of legislation will indeed increase, but it might increase to the point of disaster, absent the check on the hotheads that the filibuster now provides.

That’s kind of alarmist, I realize. Perhaps the reality wouldn’t turn out quite that bad. After all, we just witnessed how a single party can fail to achieve consensus on a major piece of legislation among themselves, because they couldn’t agree on the way forward. The failure of the House to pass Ryancare is an object lesson in how even a party in power can have internal checks on going too far too fast. From the other side of the political spectrum, even with a huge majority in the Senate, Democrats also were stymied by internal divisions when writing the Obamacare law. There will always be factions like the Tea Party, the Blue Dogs (and the Yellow Dogs before them), and the so-called “moderates.” Since we only have two major parties, each has to incorporate some hotheaded factions, to put this in slightly different terms.

Would this be enough to save America from hotheaded legislation in general, if there were no filibuster in the Senate? It’s very hard to say. The Tea Partiers stopped Paul Ryan this time, but they won’t always stand in his way, one assumes. The Blue Dogs made major changes to Obamacare, but it passed in the end. Even if Ryancare had made it through the House, over a dozen Republican senators had already indicated that they couldn’t vote for it. Perhaps there is enough internal tension within each party to avoid legislative excesses.

It’d be a very high-stakes gamble, that’s for sure. But once nuclear parity is achieved, with Harry Reid dropping the first nuke and then Mitch McConnell dropping the second, sooner or later it is going to occur to one of the political parties that if getting rid of filibusters on appointments is a good idea, then maybe it’d also be a good idea to get rid of the entire concept forever. That much appears certain ― while ending legislative filibusters would once have been a downright unthinkable concept, it will now just be the next step down the road the Senate is already taking.

Chris Weigant

Follow Chris on Twitter: @ChrisWeigant