The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
One hundred years after American soldiers sailed to France to slog it out on the Western Front, the Senate is doing its best to launch a legislative branch version of trench warfare. Democratic and Republican Senators are dug in. They are crouched in their holes, facing off against one another across a vast no man’s land of electoral land mines. There is no clear pathway to truce or trust.
In just four short months this year, the already dyspeptic institution has careened toward open hostilities, in part because of two procedural maneuvers deployed by the Republican majority. In February, the Senate deployed a rarely-used rule to silence and rebuke one of its own members, Sen. Elizabeth Warren (D-Mass). It was the Senate equivalent of a kneecapping.
And this month the Republicans eliminated the Supreme Court filibuster, a rule that encouraged bipartisanship and moderation in Court appointments for more than 100 years.
Now, all eyes are turning to the legislative filibuster. Many Democrats believe it is their last, potent weapon protecting them from being overrun in the trenches. But as with the Supreme Court filibuster, it too can be eliminated by Republicans in a snap.
Will the legislative filibuster be the next casualty of the Senate’s rapid descent into rancorous dysfunction?
For now, the legislative filibuster is safe. But not for the reasons you may think. It will survive because it has already been dramatically weakened. Moreover, to the extent the legislative filibuster survives, it benefits Republicans more than Democrats. So when Senate Majority Leader Mitch McConnell (R-Kent.) says “there’s no sentiment to change the legislative filibuster,” and commits to keeping it in place, he probably means it—with one possible exception.
Even as Republicans were voting to kill the Supreme Court filibuster, a bipartisan group of 61 Senators were fastidiously adding their names to a letter in support of the legislative filibuster. The letter-writing effort was led by Sens. Susan Collins (R-Maine) and Chris Coons (D-Del.), the two lawmakers who unsuccessfully tried to broker peace in the Supreme Court fight. Having failed in that effort, they now were seeking to throw the legislative filibuster a lifeline. “After the contentious and polarized debate of the past few weeks, I am hopeful that this letter indicates a new determination by a bipartisan group of more than 60 senators to move forward to solve the pressing problems facing our nation,” Collins said in a press release.
What her hopeful tone elides is that the legislative filibuster has already been largely defanged. Basically, filibusters can no longer be used on tax, spending, and debt limitation measures—which is a large part of the Senate’s business these days.
Now the game is “reconciliation.” Filibusters aren’t allowed under reconciliation, so all it takes for passage is 51 votes. But reconciliation also limits debate and the type of amendments that can be offered – precisely the kind of restrictions Senators from both parties are often reluctant to accept. It takes foresight and advanced parliamentary maneuvering to go the reconciliation route. But it’s easier than breaking a filibuster. Obamacare passed via reconciliation. So did COBRA in 1986 and the Children’s Health Insurance Program in 1997. The Reagan and Bush tax cuts passed that way too. Although reconciliation was created in 1974, it wasn’t used until 1980. Overall, Congress has used reconciliation 25 times.
McConnell has other filibuster-busting tools at his disposal: fast track authority for trade agreements, and the Congressional Review Act which allows Congress to overturn federal agency rules. Under fast track, the Senate can approve international trade deals without having to worry about a filibuster. And the Congressional Review Act, lets the Senate nullify certain federal agency rules filibuster-free. Before this year, the Review Act had been used only once. Thus far in 2017, it has been used 13 times, overturning Obama-era regulations on matters such as privacy protections for broadband users, limits on gun purchases by the mentally ill, and disclosure requirements for oil company payments to foreign governments.
The net effect of these filibuster exceptions is a Republican advantage in policy warfare. Republicans are free to slash budgets, taxes, and programs, and not face a filibuster. By contrast, if Democrats want to create new rules or programs, they’re likely to run into the filibuster wall. It is exceptionally rare for a Democratic initiative, like Obamacare in 2010, to pass by reconciliation.
Not only has the filibuster been curbed so it is not a major threat to the Republican agenda, keeping it around makes sense from an intra-party perspective. McConnell is nothing if not ruthlessly calculating, and if allowing Sen. Ted Cruz (R-Texas) or Sen. Rand Paul (R-Kent.) to stage a “filibuster” once in a while so their millions of hard-right acolytes watching on C-Span can swoon, what’s the harm?
Although McConnell has said he wants to keep the filibuster, he has floated the idea of tweaking it a bit more to give the GOP additional advantage. The majority leader has mused about eliminating the filibuster for appropriations bills – legislation that funds all discretionary operations of the government, such as the budget for EPA or the State Department. Naturally, such a change would favor the GOP. Democrats would be helpless to block a huge cut in the Department of Education, for example.
So, following the rules of trench warfare, McConnell has signaled an inclination to remain below ground, content with his advantage under the status quo. But if the Democrats should stage an offensive and go over the top of their trench, the Majority Leader is perfectly happy to respond with mustard gas. Yes, the filibuster is safe – for the time being.