Filibuster all but dead

The Senate filibuster has long been the scourge of American government, violating basic democratic principles, subverting the will of the majority and allowing an obstructionist minority to escape accountability.

That’s as true today as it was when minority Democrats were employing the tactic, which is why I strongly supported then-Senate Majority Leader Bill Frist’s (R-Tenn.) efforts to employ the “nuclear option” to push through President George W. Bush’s judicial nominees. It might’ve been the only time I ever agreed with Senate Republicans.

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Thankfully, as of last week, the filibuster is all but dead.

Since Republicans were reduced to a minority in 2007, the filibuster has been employed more than twice as often as it was by the previous Democratic minority. And this year, Republicans engaged in the first-ever filibuster of a nominee for secretary of Defense, as they’ve taken to filibustering anything beyond Post Office renamings. The hilarious thing was that Republicans had agreed to refrain from wanton filibustering in exchange for keeping the filibuster rules intact at the beginning of this Congress. But they didn’t even pretend to keep their end of their bargain.

Instead, Republicans decided to undermine the agencies they don’t like, such as the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau, by refusing to confirm appointees to run and operate them. It’s an admittedly ingenious move — if voters won’t give the GOP the majorities, they’ll use procedural constructs to impose their unpopular will anyway. That approach has worked wonders in the gerrymandered House.

But last week, Senate Democrats had enough, and Majority Leader Harry Reid (D-Nev.) announced that unless Republicans relented on the backlog of unconfirmed executive branch appointments, he would change Senate rules to require a simple up-or-down vote for them. While supporters of a functioning Senate wanted more, it was a start. Ultimately, a showdown was averted when Sen. John McCain (R-Ariz.) cut a “deal” that gave Democrats everything they wanted and extracted no bigger concession than swapping out two NLRB nominees for two others. No big deal. The Democrats got their confirmation votes, and they retain the right to eliminate the rule in the future if Republicans continue to obstruct.

As a result, the Republican Caucus was riven from within. Senate Minority Leader Mitch McConnell (R-Ky.) whined to his caucus that he could’ve cut a better deal, and that the McCain group had gone behind his back and refused to keep him in the loop, to which Sen. Bob Corker (R-Tenn.) yelled “bullshit” — literally. McConnell’s deal was a nonstarter: provide a vote for the stalled nominees in exchange for a promise to not change the rules for the rest of this Congress. There was no reason for Democrats to agree. It would’ve amounted to a license to go back to business as usual the next day.

Make no mistake, last week’s events ended the filibuster as we know it. Reid’s gambit was to eliminate the filibuster only for administration nominations, not judicial ones or legislation. But this deal means that a Senate majority can play the nuclear card anytime the minority amps up its obstruction beyond reasonable levels. And that applies to all Senate business — not just administration nominations. 

Democrats now know that in confirmation matters, McConnell is all but irrelevant. In the future, McCain will be the one to bear the responsibility of deciding whether to risk seeing the chamber’s rules permanently rewritten, not the minority “leader.” And just like that, the senator from Arizona may very well be the most influential Republican in the Senate.

Moulitsas is the founder and publisher of Daily Kos.