Time to "Nuke" the Filibuster

The filibuster isn't what it used to be. It's time to bring the old way back

Excerpt:

The Senate's coming confirmation of Neil Gorsuch will improve the Supreme Court, and Democrats' incontinent opposition to him will inadvertently improve the Senate -- if Republicans are provoked to thoroughly reform the filibuster. If eight Democrats will not join the 52 Republicans in providing 60 votes to end debate and bring Gorsuch's nomination to a vote, Republicans should go beyond extending to Supreme Court nominees the prohibition of filibusters concerning other judicial nominees. Senate rules should be changed to rectify a mistake made 47 years ago.

There was no limit on Senate debate until adoption of the cloture rule empowering two-thirds of senators present and voting to limit debate. This occurred on March 8, 1917 -- 29 days before Congress declared war on Germany -- after a filibuster prevented a vote on a momentous matter, the Armed Ship Bill, which would have authorized President Woodrow Wilson to arm American merchant ships. (He armed them anyway.)

In 1975, imposing cloture was made easier by requiring a vote of three-fifths of the entire Senate, a change the importance of which derived from what Majority Leader Mike Mansfield, D-Mont., did in 1970: He created the "two-track" system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a filibustered bill and move on to other matters. Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the 52 years after 1917, there were only 58 cloture motions filed; in the 46 years since 1970 there have been 1,700.

Wisdom about the filibuster comes today from the other side of the Capitol, where House rules make filibustering impossible. Rep. Tom McClintock, a conservative California Republican, writing in Hillsdale College's publication Imprimis, praises the Senate tradition that "a significant minority should be able to extend debate" in order to deepen deliberation. Post-1970 filibusters, however, are used to prevent debate. As McClintock says, "the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business."

McClintock urges the Senate to make a "motion to proceed" to consideration of a bill undebatable and hence immune to filibustering: "Great debates should be had on great matters -- but not great debates on whether to debate." And he says the Senate should abandon the two-track system. This would prevent the Senate from conducting other business during a filibuster but would require filibusterers to hold the floor. As he says, it was this mutual inconvenience that, between 1917 and 1970, made filibusters rare and productive of pressure for compromise to resolve the impasse.

Comment: Image is Jimmy Stewart in Mr Smith goes to Washington.  See Senate Republicans prepared to go nuclear if Democrats try to block Neil Gorsuch nomination On "go nuclear" / On Filibuster / the word means "to pirate"

Update: Schumer’s Folly - Democrats are heading toward an epic miscalculation in filibustering Neil Gorsuch.

Why does the filibuster survive?

Why does the filibuster survive?

Excerpt:

So why does the filibuster survive? One explanation is that any proposal to change the rules would itself be successfully filibustered. But with the nuclear option available there is -- at least on paper -- a way to defeat the filibuster. As became evident during the 2005 showdown over George W. Bush's judicial nominations, a committed majority could use procedural rulings to do away with the filibuster.

The minority could retaliate by attempting to shut down the Senate through extreme delaying tactics, but doing so would risk a public backlash, as occurred when Republicans were blamed for shutting down the government during their 1995-96 budget showdown with President Bill Clinton. In the end, a majority that sticks together and has the mettle to withstand a public firestorm has the tools to change the Senate's rules of the game.

The real reason the filibuster survives is that it continues to serve the interests of most senators. The nuclear option would require the support of a solid majority, which means getting the votes of several moderates. But some of these senators -- Ben Nelson and Evan Bayh come to mind -- stand to lose if the Senate becomes a strict majority-rule institution, since the Democrats would no longer necessarily need them to form majorities to legislate.

Regardless of ideological positions, senators appreciate the attention and personal power that they can receive by threatening to filibuster. The concessions granted to Joe Lieberman after he threatened to obstruct health care reform sent a strong signal about the power the filibuster can confers on an individual senator. It would be difficult to find 51 senators willing to give up this kind of power.

For the moment, the filibuster seems to have the support of most senators, despite the palpable frustration of liberal Democrats. But as the gap between the parties continues to grow, it may not be long before a Senate majority party includes 51 members who are sufficiently committed to a shared policy agenda to pay the personal power costs involved in imposing majority rule.

Comment: Interesting read!