Funeral for the filibuster: GOP will likely lay Senate tool to rest
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The legislative filibuster is dead; it is a fait accompli. The Republican majority has already gutted what remained of the judicial filibuster, and now both President Trump, via Twitter, and Senate Majority Leader McConnell (R-Ky.) are floating the idea of nuking the legislative filibuster. 
 
Both leaders are currently contemplating moving forward without the legislative filibuster because it is becoming more and more clear that the only viable path to pass both the American Health Care Act (AHCA) and tax reform is through a simple majority legislative process without restrictions on adding to the deficit.
 
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Congressional Republicans have been attempting to use the traditional legislative tool to pass legislation via a simple majority — reconciliation. Budget reconciliation is the fast-track process that allows tax cuts — and would allow the AHCA — to pass the Senate with the simple majority that the Republicans currently have.
 
The Byrd Rule, as Daniel Hemel and I discussed before, prevents reconciliation from being used that has budgetary effects — “changes in outlays or revenues” — that are “merely incidental to the non-budgetary components.”  If there are 50 Republican Senators in favor of the AHCA and/or tax cuts, the administration and Senate leadership are quickly coming to the conclusion that both the proposals will not pass the reconciliation process.
 
Knowing full well the challenges both bills would have passing reconciliation independently, the Republicans set the consideration of the AHCA and tax reform in a specific order. By setting AHCA reform first, the Republican majority would lower the spending baseline, which in turn would allow for a more permanent tax cut.
 
However, if AHCA does not pass or is scored less than contemplated by the Congressional Budget Office, the lowered spending baseline the Republicans are relying on for permanent tax cuts disappears. This then would mean that any tax legislation would have to be revenue-neutral or also potentially fail the Byrd Rule. 
 
Are we sure that reconciliation cannot be used? No, and neither is the administration. For the AHCA and tax cuts, the Republican majority could simply ignore a Senate Parliamentarian ruling stating certain provisions violated the Byrd Rule and move forward.
 
Alternatively, for tax cuts, in order to comply with the “merely incidental” rule, Office of Management and Budget Director Mick Mulvaney has floated the idea of using a longer window. For example, if you have 10 years worth of tax cuts but a 50-year timeframe, it is arguable that the cuts do not have budget effects outside the window.
 
 
 
A longer window is not a panacea for Republican budget hawks or advocates of permanent tax reform. From Vice President Mike PenceMichael (Mike) Richard PenceIndiana sisters with history of opposing Pence donate millions to Dems Hillicon Valley: Trump signs off on sanctions for election meddlers | Russian hacker pleads guilty over botnet | Reddit bans QAnon forum | FCC delays review of T-Mobile, Sprint merger | EU approves controversial copyright law Overnight Defense: Trump marks 9/11 anniversary | Mattis says Assad 'has been warned' on chemical weapons | US identifies first remains of returned Korean war troops MORE to Treasury Secretary Steve Mnuchin to House Speaker Paul RyanPaul Davis RyanGOP super PAC drops .5 million on Nevada ad campaign Blue wave poses governing risks for Dems Dems seek to rebuild blue wall in Rust Belt contests MORE (R-Wis.), the party line has been set in stone — permanent tax reform. As Ryan said, “They [businesses] need the certainty from permanent tax cuts to hire more workers, invest in their businesses and plan for the future.”  
 
A long window does not make any changes permanent. The domino effect of the failure to use reconciliation to pursue these key agenda items seems to put the legislative filibuster on the chopping block.  
 
How hard can it be to get rid of the filibuster anyway?  After all, the Senate disregarded the judicial filibuster to confirm Supreme Court Justice Neil Gorsuch. However, there are a couple of key signals that indicate that the Senate has no interest in nuking the legislative filibuster. 
 
First, about a month ago, Sen. Susan CollinsSusan Margaret CollinsPoll: More voters oppose Kavanaugh’s nomination than support it Feinstein's office says it has received threats over Kavanaugh Ford taps Obama, Clinton alum to navigate Senate hearing MORE (R-Maine) and Sen. Chris CoonsChristopher (Chris) Andrew CoonsJudiciary Democrat calls for additional witnesses to testify on Kavanaugh Kavanaugh allegations could be monster storm brewing for midterm elections      Sunday shows preview: White House officials on offensive in wake of anonymous NY Times op-ed MORE (D-Del.) organized a letter supporting the legislative filibuster signed by 61 Senators on both sides of the aisle. So, to change the Senate rule, President Trump and Sen. McConnell would have to convince a number of Republican Senators to rollback this month-old promise.
 
Second, whether Republicans’ and Democrats’ should support this position depends on if they are playing the long game or the short game. Generally speaking, the filibuster benefits the Republican governance structure. Legislation that creates an endowment, such as Social Security, Medicare, Medicaid, or even the Affordable Care Act, tends to be hard to undue. Once people start receiving a benefit, it's difficult to take it away. This type of progressive legislation is generally considered part of the Democratic platform. The filibuster makes enacting this type of legislation more difficult.  
 
On the other hand, the current conservative agenda of tax cuts might be easier to enact via a simple majority in a traditional budget bill. Without the Byrd Rule, a simple Republican majority can enact tax cuts and add to the deficit. Unfortunately, for the Republicans, this type of legislation is easily unwound. Yes, people like paying less in taxes, but historically, raising tax rates is much easier than taking away Social Security benefits.    
 
The true end game of the administration is not to be concerned for Senate norms or the filibuster. It is to spur economic growth and jobs. Concerns about the economy still poll the highest among Americans — more than Russian influence over the election. According to the Trump budget, tax cuts will fuel 3-percent growth. So, if economic growth is the cornerstone of the administration's policy, why should the legislative filibuster or reconciliation rules get in the way? 
 

David Herzig is a professor of law and the Michael and Dianne Swygert research fellow at Valparaiso University Law School.


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