When he’s not thinking about missile attacks on Syria, President Trump must have noticed by now that there is a certain pattern to his legislative successes and failures so far. When he’s been able to operate without worrying much about Democratic filibusters, he’s been successful, as with the reversal of Obama regulations under the Congressional Review Act (which requires only a majority vote) and most recently with the confirmation of Supreme Court Justice Neil Gorsuch (confirmed by a majority vote after the Senate rules were changed).
On the other hand, the effort to repeal-and-replace Obamacare has run afoul of the strict budgetary procedures necessary to avoid a certain Democratic filibuster of that legislation. The design of GOP tax-reform legislation is also constrained by the same budget procedures and the same fear of a filibuster. And more immediately than that, he’s in danger of being blamed for a government shutdown in just a couple of weeks if conservatives provoke a Democratic filibuster of must-pass appropriations measures with various poison pills like the defunding of Planned Parenthood.
So having watched the filibuster for Supreme Court confirmations get “nuked” by the Senate during the Gorsuch fight, you have to figure Trump now wonders why the institution cannot be totally killed off in all its forms once and for all. He is not, after all, the sort of guy who probably cares much about sacred Senate traditions, or the theory of the upper chamber as the saucer where the hot coffee of public opinion gets cooled, or any of that high-minded stuff.
And if the thought of totally nuking the filibuster has crossed his mind, he has a point: The filibuster is totally a quirk of Senate custom that could be abandoned at any moment for regular legislation, just as it has already been abandoned for executive and judicial confirmations. It would obviously empower future Democratic congressional majorities as well as today’s Republicans. But when you are trying to Make America Great Again and you are enfeebled by united Democratic opposition that makes you a hostage of small Republican factions — then who cares about precedents?
There are, however, already signs Senate Republicans will balk at the idea of abandoning the filibuster altogether, at least right now. Twenty-nine of them (along with 32 Democrats) signed on to a letter that Susan Collins and Chris Coons were circulating defending the legislative filibuster even as the SCOTUS filibuster nuking was underway. But are there less drastic options for getting around the filibuster? In theory, there are two.
The first is to create more exceptions to the rules allowing Senate minorities to halt action via the filibuster — just like those created by the Congressional Review Act or the Congressional Budget Act. If, for example, the Senate rules were changed to enable short-term appropriations measures necessary to avoid a government shutdown to pass by simple majorities, the odds of a shutdown (and the leverage obtained by those in both parties willing to risk it) would go down significantly.
The second, which is available without any special new legislation, is to use their power to expand the loopholes around the filibuster that are already available so that more legislation can get through.
This is in effect what Ted Cruz and House Freedom Caucus chairman Mark Meadows have proposed in order to facilitate the passage of GOP health-care legislation.
Much of the trouble congressional Republicans have faced with respect to the American Health Care Act involves the Byrd Rule, the arcane Congressional Budget Act procedure wherein the Senate parliamentarian is required to make non-budget-germane provisions subject to a point of order that requires 60 votes to waive — in effect, an obstacle identical to a filibuster. The Byrd Rules is why House leaders have refused to include language repealing Obamacare regulations conservatives deplore. They are very likely to take down the whole bill if the Senate parliamentarian rules them as non–Byrd Rule compliant.
Cruz and Meadows, however, have made the very good point that the parliamentarian is really just an adviser to whomever sits in the Senate chair. Someone like, say, Senate president Mike Pence could, if he wanted, overrule the chair, and let the majority of the chamber work its will on health-care policy without all these silly worries about what is and is not “germane” to a budget bill.
But if Republicans took that avenue to end one restriction on majority rule, it’s hard to know where it would all stop. Senate majorities would try to load all sorts of legislation normally subject to a filibuster into budget bills, and a lot of mischief could ensue — most definitely including the annual passage of vast, unwieldy packages of legislation no one had read. It might be safer to just kill the legislative filibuster entirely.
And there is growing pressure from House conservatives tired of being stymied by Senate liberals to do just that. It’s something that came up during the GOP congressional retreat back in January:
House Republicans, eager to pass conservative priorities they’ve campaigned on for years, are already feeling restless that the Senate — and its higher hurdle for passage — will blunt their efforts. They’d love to kill the filibuster, a nuclear option the tradition-bound McConnell is loath to deploy.
“The public doesn’t want to hear about process; they want to see us get stuff done,” said Rep. Mike Rogers (R-Ala.). “I think there is a very low threshold of tolerance among our electorate right now for historical process (and) precedent.”
Whether or not that is true of “the public,” it probably is true of the man in the White House, who has never been a legislator, considers Washington and its traditions “a swamp,” and who likely is entirely uninterested in what happens after he’s gone.
So in a year when executive-legislative clashes within a federal government entirely controlled by the Republican Party are happening with alarming frequency, don’t be surprised if a thunderbolt comes down Pennsylvania Avenue aimed at what’s left of the filibuster. It would certainly make it much easier to enact the Trump agenda. And after that, who cares?
