So when does reality set in in politics? When do we stop thinking that Mitch McConnell and Joe Manchin are going to change? Why continue to think that the filibuster is going away in 2021?
If you take a look at the Constitution the only requirements for supermajority votes are for amending the basic document or to pass on a proposed amendment to the states; calling a Constitutional Convention; impeachment conviction; expulsion of a member of Congress; overriding a presidential veto; ratifying a treaty; and implementing the 25th Amendment concerning removal of the President. All other actions of both houses of Congress only need majority votes. Both Houses set their own rules of operation.
The Federalist Papers, written by founders James Madison, Alexander Hamilton and John Jay to explain the Constitution and how it is intended to work, validate that majority rule was intended to be standard operating procedure for both Houses. The Great Compromise, which gave each state two members of the Senate regardless of the state’s population, was the founders’ way of providing some balance to smaller states.
Early in the history of the country Senators like John Calhoun made various attempts to circumvent majority rule by claiming that states had the right to “nullify” federal laws they did not agree with. That movement was shut down by President Andrew Jackson.
Originally the Senate operated on an honor system of sorts which allowed members to continue to talk on an issue unless other members concluded that the discussion was serving no useful purpose, at which point the presiding officer would shut down the talking. If the Senate still operated under the no-useful-purpose rule we probably would never hear speeches by members like Lindsay Graham and Ted Cruz.
The earliest filibusters were your basic “Mr. Smith Goes to Washington” sort that required the talking member to never stop or take a break. Eventually the Senate got around to allowing a filibuster to be ended with a supermajority vote. Originally the magic number was two-thirds of the members present and voting, later changed to three-fifths.
With a supermajority requirement a relatively small number of senators, often representing an even smaller percentage of the total population of the country, could work their will to block legislation that they did not agree with. Segregation senators used the rules to bottle up bills they wanted killed. Mostly that applied to civil rights legislation. Such was the case for many decades.
The current filibuster system operates a lot differently than the Mr. Smith version. Now a senator, often through a staff member, simply notifies the Senate’s administrative staff that they want to put a “hold” on a bill. There is no need to even show up on the Senate floor to speak. In other words, a corrupt arrangement has been made even worse.
Which brings us to 2021. President Joe Biden and various members of Congress have some ambitious plans for changing the way the federal government operates and how it funds its activities. In the highly charged partisan atmosphere that the government operates in today, getting legislation through the filibuster, supermajority gauntlet is for the most part impossible.
Democratic efforts to promote and get congressional approval of some form of their voting rights legislation as well as various social and climate issues are frustrating many in the party, particularly those on the left end of the political spectrum. They are expecting Biden, the Senate and the House to reciprocate for their electoral support last fall. That’s much easier said than done.
The rules of the Senate in recent years have been changed to get around that challenge. In 2013 Senate Democratic Majority Leader Harry Reid amended the rules to allow the confirmation of presidential administrative and judicial nominees (other than for seats on the Supreme Court) by a simple majority vote. In 2017 Republican Majority Leader Mitch McConnell took things a big step further by allowing Supreme Court nominees to be confirmed by a majority vote. That allowed him, of course, to push through Donald Trump’s selection of Neil Gorsuch to the Court after McConnell had stonewalled Barack Obama’s nomination of Merrick Garland in 2016. The process was repeated with Trump’s other appointees to the high court, Brett Kavanaugh and Amy Coney Barrett.
The dilemma and frustration of Biden and his Democratic colleagues in Congress has led to repeated calls to end the filibuster with a vote of 51 to 50, Vice President Kamala Harris casting the deciding vote. “No way” say Democratic Senators Joe Manchin and Krysten Sinema, and perhaps other Democrats who remain silently opposed to ending the filibuster and supermajority requirements.
In a 50-50 Senate such things are bound to happen when the composition of a party’s caucus includes a wide variety of members representing various political points in the broad spectrum of the Democratic Party ranging from Bernie Sanders to Joe Manchin. No amount of political posturing by Democratic progressives is going to change any of that. Only a larger Democratic caucus in the Senate with some votes to spare can make that change possible.
Flying right into the face of those basic political facts are parts of the Democratic coalition of voters who thing they are owed something, but who either do not understand or do not accept the world of national politics in 2021. The Rev. Al Sharpton, for example, said recently that the President must figure out a “workaround in terms of the filibuster… I do not think this president wants history to say that in his presidency, there was the continued weakening of voting rights for people that put him and Vice President Harris in office.” What, pray tell, would that “workaround” be?
The conclusion from your humble blogger’s point of view is this: Senate rules should be changed to end the filibuster and supermajority vote requirements for all constitutionally permitted actions of the Senate including all legislation. But recognize this is July 2021. It’s not going to happen now. Get done what can be done with budget reconciliation but stop wasting energy chasing reforms that will not happen at this time. Look for ways to increase the Democratic Majority caucus in both Houses of the next Congress.
For the traditionalists who hold to the sanctity of filibusters and supermajorities, get over it. The Senate long ago stopped being the “saucer that cooled the tea” of the House of Representatives. Many members of the current Senate are formerly House members, used to playing the rough and tumble version of politics practiced in that body. The Senate has basically morphed into another version of the House, except with statewide constituencies and longer terms.
To get anything done, accept reality and proceed accordingly.
Follow me on Twitter @kenkruly