Shutdown renews criticism of the filibuster

WASHINGTON—The government shutdown might be over, but President Donald Trump still has his sights set on changing Senate rules to prevent one from dragging on again.

“I just want to tell the American people, you should not forget this when we come up to midterms and other things. Don’t forget what they’ve done to our country,” he said while signing the temporary funding bill in the Oval Office last night. “I also want to call for a termination to the filibuster so that this can never happen again.”

The filibuster, popularized in movies like Mr. Smith Goes to Washington, is a tool senators can use to endlessly debate legislation or stall its passage. Before 1917, senators could and did filibuster everything. Then, the Senate adopted Rule XXII, also called the cloture rule, to limit debate and allow the chamber to actually vote on bills. At first, the rule held that if two-thirds of the 100-seat chamber agreed to the bill, no one would be allowed to filibuster. In 1964, Democrats launched a 60-day filibuster to oppose the Civil Rights Act, which was short the required votes. In 1975, that benchmark was lowered to 60 votes.

“The Senate is kind of the burial ground [for legislation], and it’s simply due to, here in recent decades, the rise in the use of the filibuster,” Washington University professor and Senate procedure author Steven Smith told me.

No party has held 60 or more Senate seats since 1979. The filibuster gives a minority party a chance to block bills it doesn’t like, but the obstruction, of course, frustrates the majority. This year, it has particularly frustrated the president.

“We should be able to pass great, really great legislation,” Trump said last night. “So, I say terminate the filibuster because, by the way, the Democrats will do it immediately if they ever assumed office, which hopefully they won’t.”

But in rare opposition to Trump, Republican lawmakers are largely apathetic about ending the filibuster. Senate Majority Leader John Thune, R-S.D., said earlier this month that the votes aren’t there. Republicans worry they would be handing over important leverage they’ll miss once they are in the minority. Democrats complain that Republicans have already changed filibuster rules as it suits them. Either way, political scientists like Smith agree that reforms are needed.

“Keep in mind, we hate the filibuster when we’re in charge, but we loved it when Schumer and Pelosi and Biden [were] in charge,” Sen. Markwayne Mullin, R-Okla., said in a video posted to social media last week. “It protected us from D.C. becoming a state … from them packing the courts. … We kept that from happening because of the filibuster. … I just want you to think about it.”

Ending the filibuster would require a process popularly known as “the nuclear option”: The Senate majority leader would declare on the chamber floor that only a simple majority will be considered necessary to end debate on an upcoming vote. The minority leader would then presumably oppose the point of order, and the ruling officer would reaffirm that Rule XXII requires 60 votes. But the majority leader can appeal, and a loophole rule says that only a simple majority is needed to overturn the ruling.

In 2013, former Senate Majority Leader Harry Reid, D-Nev., invoked the nuclear option to make nearly all presidential nominations exempt from the filibuster. In 2017, then–Senate Majority Leader Mitch McConnell, R-Ky., did the same to pass Supreme Court nominations with a simple majority.

According to the November Harvard Caps/Harris Poll, 44% of voters support the filibuster rule. But it is not constitutionally required, according to Smith. He said the Constitution already provides checks and balances via the House, the presidential veto, and the Supreme Court to prevent a corrupt majority.

“Those who argue that we need the filibuster in addition to that are saying that the constitutional protections are inadequate. And that’s a pretty tough case to make,” Smith said. “The Constitution doesn’t say anything about a filibuster, and in fact, it implies that simple majorities make decisions in both the House and the Senate. … So this is an invention of the Senate itself in its own rules, and it’s free to change its own rules.”

Both parties use the filibuster, Smith noted. The Republicans tend to use it to block legislation that would expand the government. The Democrats are divided on whether to keep it.

“It’s interesting that the Democrats, who were for nuking the filibuster a few years back, said exactly the same thing that Republicans—some Republicans—are saying today. And that is, ‘If they get into power, they’re going to do it,’” Smith said.

When the Democrats last controlled the chamber, Sens. Joe Manchin and Kyrsten Sinema were the notable black sheep of the caucus for opposing the elimination of the filibuster. Both have since left Congress.

Now, some Democrats push back on the assertion that they would end the filibuster.

“If past is prologue, we did not bust the filibuster,” said Sen. Jacky Rosen, D-Nev. When I asked if it was a priority to protect the filibuster no matter the majority, she added, “We protected it before.”

Sen. Mark Kelly, D-Ariz., agreed the filibuster has value. “I think it injects some reasonableness into the way that we make decisions about the future of this country,” he told me. “We are better off having the minority have a say when you consider how unpredictable and incredibly unconventional this president is.”

But many Democrats are noncommittal on the future of the filibuster and whether they actually would nuke it if they reclaim the majority.

“I’m not going to speculate about the future,” Sen. Richard Blumenthal, D-Conn., told me.

In a recent episode for her podcast, talk show host Megyn Kelly also pushed back against nuking the filibuster. She argued if Republicans eliminated the filibuster and then sped through Trump administration legislation, it could hurt the party’s election chances later.

“Americans tend to like divided government,” Kelly said. “They don’t want any one branch or one party to have too much power, and I think the Republicans would definitely lose the House and the Senate if they pushed it through. So, it would be a very short joyride for not that much return.”

So far, Republicans do not have even 51 votes to succeed with the nuclear option, with some notable exceptions: Sen. John Cornyn, R-Texas, said he’s open to change. Sen. Josh Hawley, R-Mo., told reporters during the shutdown that he was getting close to agreeing to nuke the filibuster if it meant restoring food aid. And in a Sunday interview with Fox News, Sen. Ron Johnson, R-Wis., weighed in.

“I agree with President Trump, we’ve got a lot to accomplish. … [Democrats] will obstruct every piece of good legislation President Trump and Republicans want to pass, so we’d better act first,” Johnson said. “We will use the 50-vote threshold for good things: to fully secure the border, secure our elections, to hopefully repair the damage done by Obamacare and transition to a system that actually works.” 

—This story was corrected Nov. 14 to reflect that it was Democrats who led a 60-day filibuster to oppose the Civil Rights Act in 1964.