Guns and the filibuster

Vice President Biden intoned, “On this vote, the yeas are 54, the nays are 46. Under the previous order requiring 60 votes, the amendment is not agreed to.” Moments later, from the gallery, Patricia Maisch, survivor of the horrific Tucson shooting, shouted at the senators below, “Shame on you!”


The Senate had defeated the bipartisan compromise background-check amendment worked out by Sens. Joe Manchin (D-W.Va.) and Patrick Toomey (R-Pa.), 54-46. Adoption of the amendment required 60 votes under a unanimous consent agreement. Proponents had agreed to set that threshold in order to avoid a threatened time-consuming filibuster.

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This was not the Senate’s proudest moment. According to the now-famous Quinnipiac poll, 91 percent of Americans favor universal background checks.

Critics of the Senate’s filibuster rules who had bitterly condemned the “watered down” bipartisan reforms enacted by the Senate in January seized on the background check vote blaming the amendment’s failure on Senate rules. 

Hendrik Hertzberg in The New Yorker bluntly asserted, “It’s the system, stupid.” Sen. Tom Udall (D-N.M.), one of the leaders of the demand for “Talking Filibuster” reform, complained, “Fifty-four ... senators voted in agreement with 90 percent of the American people. ... Unfortunately, however, you need more than 60 votes in the Senate in order to overcome the filibuster of virtually everything.” Many have even renewed the cry for the use of the so-called “nuclear option” to overturn the Senate’s filibuster rules with a simple majority vote despite their earlier assertions that this tactic could only be exercised on the first day of a new Congress.

As satisfying as this “we told you so” approach might seem, it gets it wrong.

About an hour after the Senate rejected the Manchin-Toomey amendment, it defeated an amendment offered by Texas Sen. John Cornyn (R). Cornyn’s amendment attracted even greater support than Manchin-Toomey. It failed on a 57-43 vote. A threatened filibuster, this time on the Democratic side, necessitated the same 60-vote threshold. Again, an amendment was defeated despite support by a majority of the senators.

Had the Cornyn amendment been adopted by simple majority vote, it would have very likely been what in the legislative parlance is called a “poison pill.” This means that its inclusion in the bill would have led to a number of senators changing their position to now oppose the overall bill with this noxious new provision attached.

The Cornyn amendment would have permitted any person eligible to carry a concealed weapon in any state to carry that weapon in every other state. As Judiciary Committee Chairman Patrick Leahy (D-Vt.) pointed out, the amendment “would nullify the laws of all 50 states.” Sen. Dianne Feinstein (D-Calif.) asserted that the amendment “would create a public safety crisis by forcing nearly every state to recognize the concealed carry permits issued by other states, even if the permit holder could not qualify for a permit in the state to which he is traveling.” 

Would a gun bill have survived with this reciprocity amendment overriding the right of states to restrict the circumstances under which and the places where a concealed firearm might be carried? In my view, no.

Even if the bill survived the Senate, the Republican-controlled House of Representatives has shown no appetite for the gun bill. The hope had been that a bipartisan supermajority vote for the compromise background-check provision would have put enough pressure on the House to squeeze it through. A bill pushed through the Senate by a narrow majority would have had little chance in the House. Even worse, the House could have stripped the bill of all but the Cornyn language and sent it back to the Senate.

The bipartisan bill is not dead, however. Broad public support can still convince the Congress to reverse itself. Historically, filibusters rarely can withstand strong and sustained public support for particular legislation. That is why, in the wake of the Senate vote, President Obama declared that there were no “coherent arguments” against Manchin-Toomey. He promised, “I see this as just round one.”
 
Arenberg is co-author of
Defending the Filibuster: The Soul of the Senate. He served on Capitol Hill for 34 years, working in senior positions for Majority Leader George Mitchell (D-Maine) and Sens. Carl Levin (D-Mich.) and Paul Tsongas (D-Mass.). He is currently an adjunct professor at Brown University.