As the dramatic and traumatic first year of the Trump presidency nears the finish line, with major legislative struggles over tax legislation and the budget, it is easy to overlook other important political events.
One such development is essential to both the tax reform package, which would be Trump’s only significant legislative achievement to date, and the less noted but spectacular success the president has had with judicial nominations.
In both cases success has depended on procedures created to negate the Senate filibuster, which is better thought of as minority obstruction.
The question now is, should the Senate move even further toward being a legislative body characterized by majority rule rather than minority obstruction?
Many Democrats, including me, might resist anything that helps President Donald Trump and his GOP congressional majority. Yet as a scholar of the Senate and advocate of responsible government, I believe it would nonetheless be a good thing for the country – and conform to what the founders intended.
Limited nuclear warfare in the Senate
On Nov. 21, 2013 the Senate, under Democratic control, decided by a 52-48 vote that the “vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.”
These few and perhaps obscure words embodied the most important change in Senate standing rules – or, to be precise, in their interpretation – since at least 1975.
Rule XXII is the Senate rule that defines cloture – a motion to bring debate to a close – and requires a supermajority of at least 60 votes on most matters under consideration. The 60-vote threshold is what empowers filibusters or minority obstruction and can prevent a final vote on legislation. The 2013 decision eliminated that barrier for nearly all nominations to the executive and judicial branches. This allowed Democrats to confirm a significant number of nominations after cloture was invoked with a simple majority vote.
Just over three years later, on April 6, 2017, the Senate, under GOP control and with exclusively Republican support, voted by the same margin to apply the same interpretation to nominations to the Supreme Court. The immediate result, of course, was the easy confirmation of Neil Gorsuch.
What this means
These decisions are significant for four reasons.
First, an entire category of Senate business, its constitutional duty to give “advice and consent” on presidential nominations, was protected from obstruction by the minority.
Second, only a few years apart, a majority from each party voted to categorically restrict the filibuster.
Third, in each case the Democratic or Republican majority employed the same controversial method – often referred to as the “nuclear option” or “constitutional option” – to make these significant changes in a standing rule of the Senate.
Instead of amending the wording of the standing rule, the majority called for a parliamentary interpretation and ruling, which requires only a simple majority vote to sustain or overturn.
Finally, this change will likely endure now that it has been sustained by majorities of both Republicans and Democrats.
Fast-tracking past the filibuster
Use of the so-called nuclear option was spectacular, controversial and did bring significant change to the Senate. Yet these moves have also been complemented by a different type of limitation on minority obstruction.
Over several decades, Congress has forged and used dozens of legislative “carve-outs” or – to use congressional scholar Molly Reynold’s term – “majoritarian exceptions” that protect specific categories of legislation from minority obstruction in the Senate.
Every legislative carve-out features a time limit on consideration that applies to both chambers. This quashes minority obstruction in the Senate because a simple majority vote will be held at the end of the time restriction. The term “fast-track” is often associated with these provisions that expedite congressional consideration. These include such specifics as approval of trade agreements and the military base closure process. In each case, lawmakers used a “fast-track” procedure to prevent obstruction.
Looming large in this category is the increased use of budget reconciliation for major legislation, such as the final work on passage of the Affordable Care Act, the 2017 attempt to repeal that law and the current Republican tax legislation.
Restoring the Senate’s important but limited role
The 60-vote Senate remains powerful but circumscribed. This threshold for ending debate still applies to most legislation. This includes appropriations bills and most laws in areas such as military policy, the environment or civil rights.
Still, the combination of the legislative carve-outs with the entire category of nominations nevertheless constitutes a serious diminution of supermajority politics.
Following the second nuclear option in 2017, many senators and observers asked whether the Senate might be heading toward the elimination of supermajority cloture entirely. “Let us go no further on this path,” said Minority Leader Chuck Schumer.
A letter signed by a bipartisan group of 61 Senators implored the majority and minority leaders to help them preserve 60 votes for most legislation. Sen. Lindsay Graham, who voted for the 2017 nuclear option, warned that if the Senate does away with the requirement, “that will be the end of the Senate.”
While most senators showed little appetite for further curtailment of supermajority cloture, President Donald Trump was ready to go all the way. Trump has more than once tweeted, with characteristic imprecision, his support for an end to all 60-vote thresholds in the Senate, the first time a president has taken such a stance.
Finish what it started
In this rare instance, I agree with the president.
By creating these restrictions, the Senate has repeatedly recognized that the 60-vote threshold is often dysfunctional and that the costs to effective governance are too high.
The norms that support the supermajority Senate are eroding. And from a constitutional perspective, that’s just fine. Contrary to Graham’s all too common sentiment, a supermajority threshold is not what defines the Senate.
As political scientists and historians have noted over and over again, supermajority cloture is not part of and cannot be derived from the Constitution or any original understanding of the Senate. Elements such as equal representation by the states, six-year terms and a higher age requirement are what distinguish the Senate’s style of deliberation and decision-making from the House.
In fact, although it may seem like the 60-vote filibuster has been with us forever, it’s actually only been around since 1917.
Moreover, the protection of minority interests, often cited as a justification for the filibuster, is a product of the system as a whole – the separate branches, the checks, federalism – not the self-appointed duty of the Senate.
To finish what it started, the Senate could change its rules to allow a simple majority to close debate on any bill, nomination or other matter, while also guaranteeing a minimum period of debate, which would allow the minority position to be voiced and debated.
In so doing the Senate would end its undemocratic pretensions and resume its prescribed and limited role in the system of checks and balances. That would be a good thing no matter which party controls the Senate and regardless of who is, or will be, president.