Filibuster faces terminal decline

Filibuster faces terminal decline
© Greg Nash

The gradual diminishment of the filibuster is inevitable now that Democrats have set off the "nuclear option," experts say, and that could have much broader ramifications down the line.

"From here on in, the filibuster is likely to be eroded, bit by bit," Michael Mezey, political scientist at DePaul University, said Friday in an email. "Once you’ve gone to the well for the parliamentary option … it will be tempting to go there again even on legislation and perhaps on Supreme Court nominees."

Norman Ornstein, congressional scholar at the conservative American Enterprise Institute, offered a similar assessment. The pruning might not happen overnight, he said, but situations will likely arise where the majority party, stonewalled by a filibuster on some high-profile legislative priority, will be overcome by the allure of changing the rules – if temporarily – for the sake of passing the bill. 

"The temptation to change the process and let it go through that way is going to be almost overwhelming," Ornstein said Friday. "Once you move down that path, you do remove some restraints."

Passed Thursday by a largely partisan vote of 52 to 48, the Democrats' rule change is designed to allow Obama to solidify appointments to the judiciary and his administration by curbing filibusters on presidential nominees.

The near-term effects are fairly clear. Republicans have blocked a long list of Obama appointees, and those nominees – including Rep. Mel Watt (D-N.C.) to head the Federal Housing Finance Agency – should now sail through the Senate.

The longer-term implications are much less certain. Many senators on both sides of the aisle have been reluctant to dabble with minority powers, cognizant of the political tides that cyclically alter which party controls the chamber.

But others have pushed hard for a more sweeping elimination of the filibuster, to include legislation and Supreme Court picks. And Republicans, who unanimously opposed the Democrats' rule change, are now suggesting that the momentum has shifted in that direction.

“You’ll regret this and you may regret this a lot sooner than you think,” Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellCongress had a good couple of weeks — now let's keep it going McCarthy: 'The Mueller investigation has got to stop' McConnell: Mueller 'ought to wrap it up' MORE (R-Ky.) warned from the Senate floor after Thursday's vote.

A number of congressional experts think McConnell and the Republicans would not hesitate to expand the filibuster reforms if they were win back the chamber.

"I would expect them to extend majority cloture to Supreme Court appointments and legislation if necessary to overcome Democratic filibusters," Thomas Mann, political scientist at the Brookings Institution, said Friday in an email.

"Democrats are prepared for that possibility," Mann added. "In their view, the routinization of the filibuster has destroyed the Senate. Better to let presidents of both parties staff their administrations and fill judicial vacancies than continue with the present conditions."

Indeed, Senate Majority Leader Harry ReidHarry Mason ReidDonald Trump is delivering on his promises and voters are noticing Danny Tarkanian wins Nevada GOP congressional primary McConnell cements his standing in GOP history MORE (D-Nev.) this week seemed to endorse the notion of McConnell eliminating the filibuster in legislative fights. He argued that the Senate fared fine in the many decades before the filibuster was used on a regular basis.

"Let him do it," Reid said Thursday. "The country did pretty damned well for 140 years. So, I think we're beyond seeing who can out-talk the other. Let's just get some work done on the Senate floor. Let him do whatever he wants to."

Some Senate Democrats – notably Sens. Jeff MerkleyJeffrey (Jeff) Alan MerkleyMerkley leads Dem lawmakers to border amid migrant policy outcry DHS secretary defends Trump administration's migrant policies Trump faces Father’s Day pleas to end separations of migrant families MORE (D-Ore.) and Tom UdallThomas (Tom) Stewart UdallOvernight Energy: Spending bill targets Pruitt | Ryan not paying 'close attention' to Pruitt controversies | Yellowstone park chief learned of dismissal through press release Senate committee targets Pruitt scandals in spending bill Overnight Energy: DNC to reject fossil fuel donations | Regulators see no security risk in coal plant closures | Senate committee rejects Trump EPA, Interior budgets MORE (D-N.M.) – have urged Reid to take that step himself, though it's not clear he could have passed such a change in the current political environment.

"Reid might have gone further if he had the Democratic votes to do so," Mann said.

Julian Zelizer, history professor at Princeton University, said much will depend on how McConnell and the minority Republicans react to the new rule change.

If the Republicans continue their aggressive filibustering of Democratic bills – or ratchet it up – that will build pressure behind the push to expand filibuster reform to include legislation, he said. But if the GOP's fear of such an expansion leads them to scale back their efforts to apply supermajority hurdles to Democratic proposals, there would be little momentum for such an expansion.

"The big question is: Does the threat of further reform lead Republicans to lay low on the use of filibusters?" Zelizer said Friday.

Jim Manley, a former Reid spokesman, said he doesn’t believe Democrats would move toward rolling back the filibuster on legislation.

“While Republicans yesterday suggested that is where the Senate was headed, I don’t see it happening, at least anytime soon,” Manley, now at QGA Public Affairs, told The Hill Friday.

“While Democrats are comfortable with what they did yesterday, and rightfully so, I’m not sure the rest of the caucus is ready to go there.”

Republicans, meanwhile, are warning that the filibuster reforms both trample decades-old Senate traditions and empower the president to act unchecked.

"The Senate, in our system, was the example to the world that there was a way in a democracy to protect minority rights," Sen. Roy BluntRoy Dean BluntErnst, Fischer to square off for leadership post Facebook gives 500 pages of answers to lawmakers' data privacy questions Community development impact remains clear with NMTC post-tax reform MORE (R-Mo.) told MSNBC Friday. "To a great extent, that's now lost on these nominations. It could very well be lost if Sen. Merkley gets his way on legislation as well."

But a number of experts pushed back against the claims that filibuster reform would pave the way for Obama to run roughshod over the Republicans. They noted that, at least in the current Congress, the GOP-controlled House has blocked numerous Senate-passed bills even before the rule change took effect.

"There are still many other steps before Congress runs smoothly and the president gets everything he wants," Zelizer said.