vision 2020

Bernie’s Plan to Thwart the Filibuster Is Needlessly Complicated

The two progressive friends on the debate stage were hardly peas in a pod on the Senate filibuster. Photo: Win McNamee/Getty Images

For a good portion of last night’s Democratic presidential debate in Houston, friends and usual allies Bernie Sanders and Elizabeth Warren were on the same page. Together they defended Medicare for All from criticisms offered by Joe Biden and the moderators. Together they savaged corporate power and political corruption.

But on one issue that actually may matter an awful lot to prospects for enactment of the progressive agenda they often share, their differences were pretty clear. Asked about the difficulty Democrats have had in passing modest firearms-regulation measures in the wake of so many recent episodes of gun violence, Warren was unambiguous:

We have a Congress that is beholden to the gun industry. And unless we’re willing to address that head-on and roll back the filibuster, we’re not going to get anything done on guns. I was in the United States Senate when 54 senators said let’s do background checks, let’s get rid of assault weapons, and with 54 senators, it failed because of the filibuster.

Until we attack the systemic problems, we can’t get gun reform in this country. We’ve got to go straight against the industry and we’ve got to change Congress, so it doesn’t just work for the wealthy and well-connected, so it works for the people.

So was Bernie Sanders:

[David Muir:] I want to turn to Senator Sanders on this, because you’ve said before of this, if Donald Trump supports ending the filibuster, which he’s talked about himself, you should be nervous. Would you support ending the filibuster?

SANDERS: No. But what I would support, absolutely, is passing major legislation, the gun legislation the people here are talking about, Medicare for All, climate change legislation that saves the planet. I will not wait for 60 votes to make that happen, and you can do it in a variety of ways. You can do that through budget reconciliation law. You have a vice president who will, in fact, tell the Senate what is appropriate and what is not, what is in order and what is not.

These are not new positions for either candidate, but they tell you a lot about their governing theories. Warren has laid out a fairly detailed step-by-step strategy for overcoming Republican obstruction in the Senate — the current system’s key choke point in stopping all sorts of progressive legislation. Finishing the job of killing off the filibuster, which enables 41 Senators to veto anything the majority wants to do, is central to that strategy.

In the past, Sanders has typically answered questions about how he expects to enact his own ambitious agenda by breezy talk of a “political revolution” in the country that will somehow convince Republican senators to abandon decades of conservative ideology, interest-group pressure, and the reactionary views often cherished by their electoral base. Arguably, the ability to control the entire federal government via all the tools available to a mobilized minority will be the last hill on which Republicans will die, and the GOP surrendering in the face of public opinion strikes me as an unlikely prospect. But however you feel about Sanders’s argument (which are sort of the other side of the pixie-dust coin represented by Joe Biden’s claims that he will charm Republicans into cooperation), he did introduce a new wrinkle in his approach to the Senate which many listeners probably didn’t grasp, obscure and complicated as it is: the idea that obstruction can be overcome by cramming everything that you want to do into a budget reconciliation bill that moves through the Senate under special rules that prohibit filibusters.

This, you may recall, is precisely what Republicans tried to do in 2017 — unsuccessfully in their Obamacare repeal-and-replace effort, but successfully in enacting tax cuts for their upper-income and corporate friends. The latter was quite a bit easier because tax bills, being mostly about revenues, are tailor-made for reconciliation, being easy to rationalize as germane to the budget. Health-care legislation? Not so easy, as I explained back when it was happening:

Senate parliamentarian Elizabeth MacDonough [is] the professional referee who (among other duties) advises the Senate leadership about what can and cannot be included in the “budget reconciliation” bill that is being used by Republicans this year to repeal and replace Obamacare. The key issue is enforcement of the so-called Byrd Rule (named after the late Democratic senator and procedural stickler Robert Byrd), which creates a point of order against “non-germane” items in reconciliation bills — i.e., matters that do not directly produce fiscal consequences. Waiving that point of order requires 60 votes, which is the equivalent of allowing a filibuster. Since the whole point of using reconciliation is to avoid filibusters and pass legislation by a simple majority, senators will go to a lot of trouble to avoid Byrd Rule conflicts. Indeed, there is a procedure informally known as a “Byrd bath” where lawyers for both parties debate hypothetical provisions in the presence of the parliamentarian, and design their bills accordingly.

Because Republicans wanted to get into all sort of regulatory issues that really had nothing at all to do with the budget, the “Byrd bath” was a real problem, and their Obamacare repeal bill subsequently did not include many elements of the conservative health-care plan they more or less had agreed upon. Ted Cruz had an idea for getting rid of the problem:

Ted Cruz, among other rebellious conservatives, has an answer, which he has been voicing repeatedly like Cato the Elder intoning “Carthage must be destroyed.” He expressed it most recently in a Wall Street Journal op-ed he signed along with House Freedom Caucus chairman Mark Meadows:

“We cannot give voters a procedural excuse for why we couldn’t get the job done … [T]he Senate parliamentarian does not ultimately determine what is allowable under reconciliation. That authority falls to the Senate and the vice president, the chamber’s presiding officer. As the former Senate parliamentarian Robert Dove once explained, the vice president is ‘the ultimate decider’ on reconciliation: ‘The parliamentarian only can advise. It is the vice president who rules.’”

In other words, if AHCA fails to fully repeal and replace Obamacare to conservatives’ satisfaction, Cruz and Meadows will blame not just Paul Ryan or Elizabeth MacDonough, but the vice-president of the United States, and through him Donald Trump. The message is not subtle: Trump should tell his junior partner to let Senate Republicans do whatever the hell they want.

This is the idea that Bernie Sanders is now embracing, and what he means in obscurely referring to the power of the vice-president to control “what is appropriate and what is not, what is in order and what is not.”

Cruz and Meadows did not, in fact, convince their fellow Republicans to blow up the filibuster via this indirect method. And the basic question about Sanders adopting this stratagem is: Why not just abolish the filibuster instead of bypassing it in this controversial and possibly illegal manner? Before the filibuster for Executive branch and judicial appointments was killed, you could make an argument to keep it around to prevent the other party from stocking the federal government and the judiciary with crazy people. Now? It’s not clear why you’d take this position, unless, like Joe Biden, Bernie Sanders has spent so much time in the upper chamber of Congress that he suffers (to borrow my colleague Jonathan Chait’s phrase) from the debilitating disease of “Senatitis.”

Bernie’s Plan to Thwart the Filibuster Is Needlessly Complex