WASHINGTON – A potentially transformative event for American politics occurred a few days ago, gaining little attention amid the glare of cruise-missile strikes in Syria.
But it could have far-reaching consequences.
The confirmation of Neil Gorsuch to the Supreme Court required a change in parliamentary procedure that came within one blow of knocking down the notorious, ever-influential Senate filibuster rule.
It’s the decades-old rule that nearly everything in the U.S. Senate can be vetoed by default. To override that veto requires a 60-per-cent vote; depending on one’s perspective, that’s either a valuable check on power or a prescription for permanent inaction.
That old impediment has halted liberal projects in the past like gun control, a public health option and cap-and-trade. Now it’s thwarting Republicans, who have a majority but still not enough votes to cut entitlements or end the estate tax.
But the old dam is crumbling — it’s now two-thirds gone.
The filibuster traditionally applied in three areas — approving government hires, like cabinet members and ambassadors; approving appointments to the Supreme Court; and approving legislation — and the first two are now gone.
In an era of entrenched partisan hostility, the majority party keeps whittling down the rules to get things done. First, it was Democrats when their opponents blocked appointments in 2013. This month, it was the Republicans who ended the filibuster for Supreme Court justices.
Now the question is: Will they go all the way, end the filibuster for legislation, and finally allow bills to flow through both chambers of the U.S. Congress with a simple majority vote?
Most senators hope not. In a letter, 61 of them from both parties urged their leaders to keep the filibuster for legislation because, they said, it enables their chamber to play a unique role as a consensus-seeking body.
“We are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body,” said the April 7 letter.
Should that final barrier drop, the potential effects on American governance are endless.
For example, one Republican read a wish list of the top 10 bills his party could pass without the filibuster. Lamar Alexander meant it as a warning for Democrats in 2013 not to start eroding the rules.
His list included: Repealing Obamacare. Oil drilling in the Arctic. Eliminating the estate tax. Ending regulations on greenhouse gases. Slashing $1 trillion from entitlement programs to pay down the debt. Reducing union power with right-to-work bills.
“The Senate will be like the House of Representatives and a train can run through it without anyone slowing it down,” he said. “There will be a lot of my colleagues with their own ideas about adding a lot of cars to that freight train.”
Republicans are now one rule change away from making that a reality, as they now control the Senate, House, and White House.
What’s the Democratic wish list for a filibuster-free world?
One conservative lawmaker suspects it would include a cap-and-trade bill, a national gun registry, pro-union laws and higher taxes. In a piece in the Wall Street Journal last year, Ben Sasse wrote that Democrats would be the big winner from a rule change — because they want a more active government.
“Progressives believe power — that is the government — is the centre of life. We don’t,” Sasse said.
“They will grow government, and there will be nothing conservatives can do about it.”
People outside the U.S. might watch this and ask: What’s the big deal?
Easier lawmaking would make the U.S. more like a parliamentary system, with clearer accountability — a party gains power, it enacts a program, and if voters don’t like it, they get rid of that party and bring in the other one.
Congressional scholars aren’t necessarily sold on this change.
Gregory Koger, a political science professor at the University of Miami and author of the book, “Filibustering: A Political History of Obstruction in the House and Senate,” says of some liberals who want to end the filibuster: “I think they underestimate the set of liberal accomplishments they wish to defend (like) medicaid, environmental laws, labour laws.”
A colleague of his points to a poor historical track record for tinkering with Senate rules.
Lauren Bell said there have been unintended consequences whenever the Senate moved away from its true nature — and its nature is to be a collegial, less-partisan, moderating influence on lawmaking.
It’s often likened to a metaphorical teapot, cooling the hot stuff served up by the House of Representatives. That’s why senators were initially unelected. They are now elected to six-year terms, compared to the two-year terms in the House, which is almost perennially in campaign mode.
Bell says more partisanship and stall-tactics grew out of attempts to speed things up, with the introduction of closure motions in 1917, filibuster reforms in the early 1970s, and finally the current system introduced in 1975.
A move to simple-majority votes could prompt similar unintended consequences, says the professor at Randolph-Macon College in Virginia.
Take the fact that every lawmaker is entitled to speak for an hour on a bill. Now imagine how a frustrated minority party might abuse that right — and, for example, have 48 members clog up the chamber for an entire week, speaking 96 hours, on two bills to rename post offices.
“To an outsider of course it looks like, ‘Well, it’s obvious — why would you have a 60-vote threshold? That’s not particularly democratic,'” she says. “But to those of us who study the Senate the 60-vote threshold makes a lot of sense…
“In the American context… nothing that is happening now is normal.”