Destroy the US Senate to Save It?

Finger-pointing, recriminations, blame-gaming, and circular firing squads are human nature, especially after losing a contest. That’s true whether it's football games or elections. If you’re not blaming the refs, you’re yelling about your team’s quarterback, dropped passes, missed plays, bad coaching, or worse.

Or losing a lot of elections, most of which weren’t even close.

And a lot of Republicans are doing precisely this in very foolish ways, proving that they’ve learned nothing from their shellacking this past week. Example: blaming Senate GOP Leader John Thune for the SAVE Act (voter ID required to register to prove citizenship), confirming judicial and other nominations, and other agenda items.

Their bright ideas: One, replace Thune (with whom?) and/or jettison the Senate’s Rule XXII supermajority requirements for ending filibusters, then jamming through bills during the forthcoming “lame duck” session with a simple majority of 51 GOP Senators (or a simple majority of those showing up and voting) that Trump will sign into law, and using his veto pen (while he still has it) to prevent the next Congress, controlled by Democrats, from repealing them. The Constitution (Article I, Section 7) still requires a two-thirds vote to overturn a veto, and the Democrats don’t have those numbers, at least yet.

On the surface, that seems politically attractive to the politically angry. Do what you said you would do but couldn’t get done during your “do nothing” 119th Congress. Excite the base (MAGA) GOP vote and set the stage for future elections. Give President Trump some policy and personnel wins. Quit turning the US Senate into a graveyard where good House-passed bills go to die.

There are just a few problems with that, starting with why those popular agenda items, particularly the SAVE Act, didn’t pass in the first place.

It starts with forgetting what you were taught in middle school civics (you did study American government sometime in school, didn’t you?) about how a Bill becomes Law. Maybe revisit this.

House party leaders, especially the Speaker, do have the power to twist arms and deliver votes. Junior members crave good committee memberships. Individual House members who aren’t coalition leaders (think the House Freedom Caucus or the House Progressive Caucus) don’t have much power unless they act collectively. By design, the House is a majoritarian institution with short, two-year terms and heavy doses of ideology and partisanship.

That’s mostly not true in the US Senate. Individual US Senators are often described as aircraft carriers, big ships that are harder to move and turn much more slowly than the smaller but more agile swiftboats that comprise the House membership.

Individual House members can’t filibuster or debate endlessly, except during late-night “special orders,” when they can talk to an empty chamber for about an hour or so, or until their time expires. The Constitution gives them no role in confirming judges or executive branch nominees. House rules require that amendments be germane to the underlying legislation.

Oh, sure, there are things such as “vacating the chair” and other privileged motions that give House members a little visibility, maybe even a little negotiating power. They can bypass leadership and committees by getting 218 members - a majority - to sign a “discharge petition.” But that is very challenging. Just ask them.

The Senate floor leader is only as powerful as the size and composition of their conference. Senators have the power of unlimited debate and, with a few exceptions, an unlimited ability to amend legislation (not appropriations or budget and reconciliation bills) without regard to germane-ness. Floor time on bills is precious, and floor leaders work tirelessly to manage some 300 amendments or so to advance a bill to a successful outcome, sometimes just getting to a House-Senate conference.

Thanks to an evolution of “unanimous consent” motions that allow any one Senator to object and gum up motions, along with other rules and customs, such as the “blue slip” process involving judicial and related nominations that pertains to a Senator’s state, individual Senators have way more power than individual House members.

There’s a reason my friend and Senate Historian Emeritus Dr. Richard Baker entitled his book about Senate floor leaders — we’ve only had them for about 113 years — “first among equals.” They’re not as powerful as you think.

And then there is the “filibuster,” or Rule XXII, which requires a supermajority of 60 votes to end debate and expedite consideration of legislation. The filibuster was eliminated in 2013 for non-Supreme Court judicial and executive branch nominees; Supreme Court nominations were removed from Rule XXII considerations in 2017. You might want to ask how that’s turned out with our cast of lower-court judges from the Biden era.

“Justice (Maria) Kahn, a justice on the Connecticut State Supreme Court nominated for the Second Circuit Court of Appeals, comes from the belly of the anti-free-speech beast. She spent years as a ‘diversity trainer’ who compelled attendees to watch an animated video titled ‘How Microaggressions Are Like Mosquito Bites.’ On the bench, she has suggested that the First Amendment ‘fighting words’ doctrine should be expanded to allow the criminalization of more speech.”

National Review, March 27, 2023. Kahn was confirmed by the US Senate as a Second Circuit Court of Appeals Judge by a Democratic Senate, 54-42.

As with most (not all) recent Supreme Court nominees, we have been poorly served by eliminating the filibuster for judicial and executive branch nominees.

As a result, House leaders have much more power to cajole votes, tailor and control floor consideration by crafting rules that limit or even ban amendments, limit debate, and pass things with a simple majority (but not always: the House GOP leadership lost plenty of votes this Congress). Without unanimous consent or 60 votes to stop filibusters and require germane amendments, the Senate can’t frame or control floor debates on legislation.

Which brings us back to the MAGA right’s favorite whipping boy, Senate Majority Leader John Thune (R-SD). Above is a graphic some ignorant, clownish, clickbait broadcaster created that’s circulating in the fever swamps of the internet. And it’s one of the more respectful ones.

Senate leaders — all of them, six among the GOP and just two among the Democrats — are products of their conferences. They are popularly elected by their colleagues and accountable to them. And if you haven’t paid attention to the composition of the soon-departing 53-member Senate Conference for the 119th Congress, it’s not too late to start.

Let’s address some of the items on the graphic above, starting with the SAVE Act, or “Safeguarding American Voter Eligibility” Act.

Thune supported it. He endorsed it. He advocated for it, endlessly. He brought it up for a vote, a motion to consider, in March. It failed 51-48, with 60 votes needed to invoke cloture and ensure a final vote for passage. It gave the GOP an issue to run on, with every Democrat on record opposed to the very popular notion of proof of citizenship when registering to vote, and a valid photo ID to cast one.

How did that issue play out in the elections? Oh, sure, several states adopted ballot initiatives to require proof of citizenship or voter ID at the polls, or both. Did it help GOP House and Senate candidates who voted for it? Perhaps ask US Senator Susan Collins (R-ME).

Anti-Thune folks will then assert that we need to eliminate the filibuster so it can make its way to Trump’s desk. Tell me, geniuses, how many GOP votes are needed, and how many do you have, to accomplish that? And then there is the issue of getting departing senators to show up, especially the ones Trump offended and dissed the past couple of years, including Dr. Bill Cassidy (Trump endorsed a primary opponent), John Cornyn (ditto), and the retiring Thom Tillis. Other departing senators may feel the same, including Susan Collins and Roger Marshall, whose political careers came to a screeching halt in large part because of anger at President Trump’s management of economic issues.

Hint: You need 51 votes, and Thune doesn’t have them. Several Republican senators are on record as opposed to the filibuster, which not only protects minority rights but has a long history of preventing a lot of bad legislation from being enacted.

Except when it hasn’t. Obamacare passed with a filibuster-proof 60 Democratic votes in the US Senate in 2010. Later that election year, Obama and the Democrats lost 63 seats in the House and six in the Senate, giving the GOP outright control of Congress, and we’re still paying the price for a very bad bill.

(In this photo, Senator John McCain casts the deciding no vote for a "skinny repeal" of Obamacare in 2017)

The vote to repeal Obamacare in 2017 was lost by a single vote, cast by the late John McCain (R-AZ). Above, he flashes a thumbs-down on a vote to proceed to a “skinny repeal” of Obamacare with a nearly full Senate on hand to see the drama. An unhappy Senate Majority Leader, Mitch McConnell (R-KY), stands a few feet away with his arms folded.

I won’t go into McCain’s reasons for his vote, other than the lack of a GOP alternative supported by the Senate conference. But the point is this: For all the pressure that Senator McConnell placed on McCain and others, it didn’t work. And punishing Senators for straying from the reservation has consequences for future votes — there are always future votes. Former Senate Majority Leader Trent Lott (R-MS) was once asked what the most important vote was. “The next one,” he asserted. Bingo.

Another argument is that since the Democrats are going to use the “nuclear option” to eliminate the Senate filibuster, the GOP should go ahead and do it and jam their agenda through in the meantime, even at the risk of it being repealed if and when Democrats control all branches of the federal government, a real possibility in just two years.

“At some point, Democrats may try and steal the car, but we’re not going to hand them the keys.”

US Senate Majority Leader John Thune

The Democrats would love the GOP to do their dirty work. It also raises the question whether Democrats really have 51 votes (the answer is probably yes) to eliminate the filibuster. After all, a bunch of Senators are on record begging Sen. McConnell NOT to eliminate it under pressure from President Trump during his first term. Unfortunately, many of them aren’t around anymore, but a few are, including Democratic Senators Jack Reed (D-RI), Chris Coons (D-DE, who organized the letter), returning Senator Sherrod Brown (D-OH), Cory Booker (D-NJ), Maria Cantwell (D-WA), Maggie Hassan (D-NH), Tammy Duckworth (D-IL) and Tim Kaine (D-VA). Add US Sen. John Fetterman (D-PA) to the list.

“The filibuster is not in the Constitution nor the original Senate rules, but we have a bicameral system for a reason and this legislative tool serves a critical purpose in ensuring the functioning of our democratic republic,” said Senator Jack Reed (D-RI). “Yes, it sometimes slows the process down, and some have abused or subverted it. But it remains an important part in our system of checks and balances.”

Schumer shouldn’t have the votes to jettison the filibuster. We’re about to find out which of these Senators are hypocrites.

At best, about 30 GOP Senators oppose eliminating the filibuster. Many, including Senate Conference Vice Chairman James Lankford (R-OK) and Senate Policy Committee Chair Shelley Moore Capito (R-WV), are not among them. They are persuaded, as the late former Senate Parliamentarian Bob Dove, a Republican, and Richard Arenberg, a former senior Democratic Senate aide, opined in their excellent book, “Defending the Filibuster,” cited the farewell speech of outgoing Vice President Adlai Stevenson:

“It must not be forgotten that the rules governing this body are founded deep in human experience. . . By its rules, the Senate wisely fixes the limits to its own power. Of those who clamor against the Senate and its methods of procedure, it may be truly said: ‘They know not what they do.’

“In this Chamber alone are preserved without restraint two essentials of wise legislation and good government: the right of amendment and of debate. Great evils often result from hasty legislation; rarely from the delay which follows full discussion and deliberation.”

I get that people care increasingly less about how the institution of the Senate functions, and the principles and rules upon which it is based and has evolved over the past couple of centuries as the world’s oldest deliberative body. I get that people care deeply about their country and public policies, that they want to “protect democracy” and “save the Republic,” and are very impatient for results.

But our institutions matter, and undermining the Senate will have very deleterious consequences. The Senate is a deliberative body, and that requires patience. That’s why the filibuster has been so challenging to eliminate; senators from both parties understand the consequences, because, as Republicans are about to find out, minority rights are very important, and not just to the upper chamber.

Turning the entire Congress into a majoritarian body will have terrible consequences and run counter to our Founders’ vision and design of diffuse power, including checks and balances. If a majoritarian government can bigfoot an oppressive agenda, more than our rights are at stake.

I get that the filibuster has been abused — and badly — by both parties in recent years. It's been used more to stop legislation than to protect the right to debate and amend, its original design. And there are good reforms to address that, any of which have been outlined by my good friend Mark Strand and US Rep. Tom McClintock (R-CA), one of the more thoughtful and strongly conservative House Republicans. I have a few ideas of my own.

The Senate, under Democratic control, may very well eliminate the filibuster and destroy the Senate’s essential character. I predict they will. Incoming Majority Leader Chuck Schumer, who faces reelection in New York in 2028, isn’t concerned about a challenge from Republicans; he’s likely terrified of a Democratic primary. Several prominent Socialist Democrats are waiting in the wings, including New York’s new Muslim Mayor and a certain congresswoman from Brooklyn who is also weighing a presidential campaign. Schumer will no doubt do his best to deliver for the most extreme members of his party, early and often.

But that doesn’t mean, as Senator Thune wisely said, that we need to hand them the keys to the car. Calls from the MAGA right to eliminate the filibuster — to paraphrase a former Vietnam War correspondent — are an effort to save the Senate by destroying it.

It became necessary to destroy the town to save it. - Peter Arnett

Count me out.

“Without the legislative filibuster, it’s not hard to see a future in which national policy on a host of issues could fluctuate wildly every few years.

“Taxes could go up and down on a regular basis.

“Government programs could be stopped and started every few years.

“The consequences for individuals, businesses, and our economy would not just be unpleasant, but potentially devastating.

“Mr. President, I understand the frustration of my Democrat colleagues.

“I’ve been in the minority in the Senate.

“I also know what it’s like when you get into the majority and can’t pass everything you want because the minority party will filibuster your bills.

“I’ve certainly had moments when I wished we could just pass legislation with a simple majority.

“Democrats have stood in the way of a lot of legislation I’d like to have passed this year – from Senator Scott’s police reform bill to additional coronavirus relief to pro-life legislation.

“It’s also important to note that not every filibuster has been undertaken for noble purposes.

“Like every tool, it can be misused.

“But I know that no matter how frustrating the filibuster may be in the moment, preserving it is essential to preserving this institution of the Senate and the purpose for which it was created.

“It’s essential to protecting minority rights.

“And it’s an essential check on tyrannical majorities that would seek to curtail our freedoms.

“Mr. President, legend has it that when Benjamin Franklin was leaving the Constitutional Convention, someone approached him and asked him what form of government the convention had instituted.

“‘A republic,’ Franklin said, ‘if you can keep it.’

“‘If you can keep it.’

“Mr. President, today the legislative filibuster is the key rule preserving the Senate’s constitutional role as a check on partisan passion.

“I pray that no future Senate will destroy the Senate’s essential role in our system of government for temporary partisan gain.”

Senate Majority Leader John Thune, September 15, 2020