February 5, 2019

My answer to a reader’s frustration with Sen. Majority Leader Mitch McConnell over wall funding brought in a ton of response. Here’s just one example:

From Jim:

I enjoyed reading your response to Tom about why Sen. Mitch McConnell did not bring the vote regarding wall funding to the Senate floor before Nancy Pelosi and her Democrats took over the House. My question to you, though, is why didn’t Sen. McConnell go nuclear and put the vote on the Senate floor and only require a simple majority to pass the legislation that the House Republicans passed in December? If I remember correctly, the House bill had the wall funding that President Trump requested.

From me:

Thanks, Jim, for this excellent question. Let me first say that my original answer was meant as an explanation, not an excuse, for Republican inaction. Republicans have definitely got to start rowing in the same direction if they’re going to accomplish anything on Trump’s agenda. The main point of my answer was that if we don’t like the job our Republican officeholders are doing, particularly in the more moderately-red states, we’re going to have to get more involved at the grass-roots level to find more conservative candidates and get them elected. Maybe even run for office ourselves. (Hey, been there, done that! Now it’s your turn.)

Commentary continues below advertisement

That said, many readers still wanted to know why Sen. McConnell didn’t just “go nuclear” --- as the President clearly wanted him to do --- and pass the wall-funding budget bill with 51 votes. That would’ve meant getting support from just 50 senators, with Vice President Pence breaking a tie if necessary. It seems like an easy solution, almost a “no-brainer,” but Senate Republicans had better use their brains on this because it would change the balance of power dramatically in the Senate from that day forward and could come back to bite them in a big way when they find themselves in the minority.

The law of unintended consequences needs to be thoroughly considered before the “nuclear option” is adopted across the board. (We also really need a better term for this than “nuclear option,” but I digress.) If Democrats regain power, with (shudder) Sen. Chuck Schumer as the Majority Leader, they can and will use the new procedure put in place by Republicans to run roughshod over...Republicans. If that happens, we can kiss even the tiniest bit of influence in the Senate goodbye.

Remember the fight over Justice Neil Gorsuch’s Senate confirmation? Perhaps it pales in comparison now to the hysteria over Justice Kavanaugh, but at the time it was quite a battle. And the only way Gorsuch’s nomination could advance to a final vote was for Sen. McConnell to invoke the “nuclear option,” so he did that --- just for Supreme Court nominees. He said at the time that it was “for the good of the country,” to “restore norms” in response to an “unprecedented” Democratic filibuster. And now, because of this change, an opposing party can’t filibuster its way to the defeat of a Supreme Court nominee who has majority support.

Keep in mind, this change was adopted only for the SCOTUS confirmation process. (Before this, then-Senate Majority Leader Harry Reid had already changed the rules to to allow simple-majority confirmation of Cabinet appointments and judicial nominees below SCOTUS level.) And if/when the Democrats re-take the Senate, THEY’LL be able to go forward with THEIR Supreme Court nominees with a simple majority. McConnell’s procedural change was a last resort, the long-term risk we had to take to get Gorsuch confirmed.

So, should the Senate change its procedure on legislation, too? Certainly the President wants them to. But what might that mean down the road? No doubt we’d live to regret it one day. As you can see, the issue is not so simple.

One reader did have a good suggestion: At least force a vote on cloture for the budget bill. There might be a few who don’t love the idea of a wall but who would hesitate to be put on the record with a “no” on wall funding. Would that make enough of a difference to get us to 60 votes? Maybe worth a try.

Although filibusters were rarely used until the 1970s, they became much more frequent after a change in the rules to permit what might be called a “virtual filibuster.” From 1917 –- when “cloture” was introduced in the Woodrow Wilson administration to put a limit on endless filibustering –- to 1990, there were 413 filibusters. But over just the next 12 years, it was used nearly 600 times! Reason: instead of bringing all Senate business to a halt while someone spoke at the podium for hours or even days (a big deal), the filibuster could be conducted in absentia while other business went on as usual. With today’s virtual filibuster, a small number of senators can effectively hold the U.S. Senate hostage and delay consideration of a bill FOREVER. Major pieces of legislation that have majority support still die before being voted on, all because of a small minority representing as little as 11 percent of the country. No wonder so little gets done.

Here’s even more reading, if you like. You will not be tested.

So, this is where we are today. It seems to me that one way to improve this situation, besides changing the cloture rule, would be to go back to the real, old-style filibuster. The method used now is just too painless and convenient, causing it to be done much more often, so that any bill is automatically quashed unless the Majority Leader knows he can get 60 votes. On the other hand, if someone filibusters the old-fashioned way, it delays everything else, too, perhaps including important legislation that deserves action.

Commentary continues below advertisement

The old-style filibuster can delay, delay, delay, but not forever. One of the most infamous filibusters was carried out by Democratic Sen. Strom Thurmond, then age 55, who spoke for 24 hours and 18 minutes straight to try to stall the passage of the Civil Rights act of 1957. (His party must have been so proud.) As the story goes, he was armed with mass quantities of throat lozenges and malted milk balls, and he prepared for the ordeal by dehydrating himself in a steam room, in the hope that he wouldn’t need a bathroom for many hours. Guess it worked, at least as well as anything could have! But in those days, a filibuster eventually had to come to an end when the filibusterer desperately needed a bathroom, and/or a bath.

When they wrote the Constitution, the founders viewed the Senate’s job as one of moderation, to keep those hotheads in the House from passing bills willy-nilly during their two-year terms. Filibustering could be seen as one way to slow things down. But the founders considered supermajority quorums and rejected the idea. Here’s Federalist Paper No. 58: “ all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed if more than a majority were required.” It seems they would view today’s loose filibuster rules as “filibuster abuse,” the minority tyrannizing the majority.

Here’s everything you ever wanted to know about the filibuster, and much, much more, including possible ways to reform it without getting rid of it entirely. Warning: we’re really getting into the weeds here. 

Anyway, my point with all this is that the issue of what McConnell should do regarding cloture is complicated. He did change the rule once, to get a Supreme Court justice confirmed. Should he do it again?



Also, reader Jerry R. asked what happened to the $25 billion that was voted for the border wall in 2006. According to Wikipedia, although the 2006 law authorized construction of a fence, Congress did not fully appropriate the funds to build it. They set aside a measly $1.4 billion. According to a 2017 report from the Government Accounting Office, Congress spent about $2.3 billion for border fencing between fiscal year 2007 and 2015. So, Congress approved the fence, but not the money to build it. Good plan!



Leave a Comment

Note: Fields marked with an * are required.

Your Information
Your Comment
BBML accepted!

Comments 1-15 of 15

  • William Luznicky

    02/07/2019 02:09 PM

    With all respect, Governor... Anyone that believes the current cadre of Democrats would abide by the Byrd Rule if it wasn't in their best interest clearly must have access to some insight that thoroughly escapes me; especially in light of former Senate Majority Leader Harry Reid's remarks he would do that very thing.
    The Republican cause has suffered greatly for decades because many of our leaders refuse to fight back. They value propriety over victory, image over results. But I believe there is a far easier explanation of Mitch McConnell's reluctance to use the 'Nuclear Option' - he doesn't want to stem illegal immigration. He doesn't want sensible legal immigration reform. And most of all, he doesn't want President Trump's agenda to succeed.
    I believe that 'Behavior Never Lies'... and the actions of our Republican leadership draw a clear picture as to what they want.
    The Byrd Rule simply gives them cover; they can claim they can't do anything about it. It is high time we all stand up and say, 'The Emperor has no clothes.'

  • Linda Olds

    02/06/2019 06:46 PM

    Just wondering: You said that McConnell shouldn't "use the nuclear option" because then the Democrats will use it against Republicans. What's to stop the Democrats from doing that anyway?

  • Susanne Heron

    02/06/2019 06:13 PM

    Hi Governor! BTW, you have a great daughter! My main concern is how far our government has drifted from the entity our founders envisioned. I picture lobbyists handing out money left and right, buying votes. Congressmen making money hand over fist utilizing the swamp, and the last thing they want is some businessman disrupting their happy little wonderland. How do we bring it home to them that we elect them to make decisions for the American citizen's interests, not their own? Voting is rapidly becoming useless as more voter fraud goes on I'm sure than we can imagine. Just look at Illinois, for an example, we practically invented it. I see the biggest problem in Washington is that our representatives tax us but refuse to represent our interests, and have carried on this disgusting practice for at least the better part of 50 years. God really intervened with Trump's victory, saved us from a horrible death at cliff's edge. But there are so many people out here that look at him from an emotional viewpoint, and ignore completely all that he's accomplished - and that he is actually working to fulfill his campaign promises!! Gasp! One thing he's done for sure - shown the extreme left for what they are, a destructive mindset bent on tearing down our republic stone by stone. The more I see of this, the more I wonder just how many of our citizens are on mind-altering substances, and scared to death that their supply lines will dry up. Again how do we make it clear to Congress that they are there to work for us, not take vacations and work 3 days and take another vacation. Let's start paying them $15 an hour and give them time cards to punch. We've created an elitist government, and they believe we're sheep. Well, there is a lot of baa-ing going on out here, and it's scary! Somebody in D.C. has to have a brain capable of thought and compromise and leadership. Sorry for the novel, it breaks my heart what's happening out here with people actually liking socialism! Yikes!

  • Stinger

    02/06/2019 05:09 PM

    Thanks for your explanation, personally I think the whole Senate Rule(s) is a bunch of B.S. in disguise!!!

    My Rules :
    51 votes to pass ALL legislation and confirmations and...... all Bills MUST be voted on with in 60 days of being made and accepted, with no more than 14 days in committee per Bill. Also, all congress people must stay in their home states! They can have their meetings and VOTE on their computers via "Go To Meeting.Com" like the rest of us! (This would make "Special Interest Lobbying" much more difficult). And..... they would be here right beside me where I could get my hands around their necks, if necessary!!! No longer a need for Washington D.C. and the Deep State!!

  • Tom Davis

    02/06/2019 11:13 AM

    Dear Mike: Perhaps a new take on the immigration issue be considered. For instance, I'm tired of hearing how many illegals were caught, detained and refused entry. Rather, I think American's would have a more curious, intense interest in how many get into the country and what the costs are. Example, the estimates vary between 11m and 20m illegals in the USA. Think about this; that's the same as the population of N & S Dakota, Utah, Montana, Colorado, Wyoming, and Nebraska. Is anyone willing to cede that much territory? Also, with the issues of healthcare, infrastructure, education, etc (not to mention the deficit) how long are taxpayers willing to pay $150 to $250b annually for the care and upkeep of our southern neighbors who have decided to retire (not all of them are retired but that's another message) to America? God Bless Governor! Keep us in the fight. Keep us in the know!

  • Tammy Drew

    02/05/2019 10:01 PM

    Hi Mike,
    There is a story going around that the "trump administration" cannot reunite the children with their parents. Do you know anything about this? This is just another attack on Trump.
    Thanks, Tammy

  • John W Hall

    02/05/2019 06:08 PM

    The border wall is a one time expense, build and done. The Dem proposals are for 20 times the expenditure, renewing yearly, to pay lots of people to do what the wall does with one expenditure. Typical big gov't reasoning.

  • Vernon Hinz

    02/05/2019 05:11 PM

    I enjoy your comments very much, they bring a lot of things to light that many of us don't understand about the function of the house and senate. But one thing is for sure, the Republicans need very much to get their act together and work as one body with the same goal. That is where the Democrats have it over them, they may not always agree with each other but they do no how to stick together to get something done then iron out their differences later.

  • Kathy A. Siler

    02/05/2019 05:08 PM

    I helped work on Sen. McConnell's first run for office when I worked for the Republican Party of Kentucky and have voted for him in every election since. However, never again!!!! I will probably not be able to vote for a Democrat in his next bid for reelection, so I'll just have to skip that part of the ballot. Sad, but true.

  • Barbara Priestley

    02/05/2019 03:56 PM

    There seems to be so opinions about a need for a wall on the southern border, but could this be an issue that the Americans who are registered legally, could vote on? I do not like the way DC thinks I do not want a wall, nor have I been asked my opinion. I am in favor of building a wall and would love the chance to tell both parties I want one built by voting on the issue! I am 72 and from West Virginia, and I have never seen a bigger mess in DC in all my years. I say let us, the legal citizens, vote on this issue and DC has to live with the results, the same as I do. Seems like a simple solution to so much disagreements. Thank you.

  • James D. Simpson

    02/05/2019 03:48 PM

    I heard about 4 weeks ago (never since) that Congress and Senate were floating a bill to provide (incent) Central American countries in the amount of approximately $8.0 to $10.8 Billion dollars to keep the folks from trying to storm America from Honduras et all. Has anyone heard any more about this? Would seem to me this is counterproductive because we know the governments of those countries are not going to give it to the intended people. This just gives them, (Central America), more money to in fact transport the immigrants to the border don't you think? STUPID IDEA. Use the money to build the WALL, Fence, retainer whatever "Get Er Done for Pete's sake!

  • Sheila Eyster

    02/05/2019 12:54 PM

    You are assuming that Chuck Schumer wouldnt go nuclear on all Senate votes unless McConnell did it first. That gives too much credit to Schumer. 51 votes should be all thst is required for cloture. Always. It works everywhere except the Senate. Tyrany of 9 Senators is just plain wrong and always has been. Vote cloture and get up or down votes on everything.

  • Diane Samples

    02/05/2019 12:37 PM

    Great refresher course on the shell game called politics. It is very important to have fair conservative Judges on the Supreme Court; Judges that will uphold our laws but know they can't make laws (same sex marriage can't be the law of the land because Supreme Court said so). Just as important is defending our Country against invasion. It seems utterly foolish that this even needs a vote. Must DC politicians are derelict of their duty and violating their OATH of office. My Marine Grandsons took the OATH. PROTECT AND DEFEND.

  • Kendra Strecker

    02/05/2019 12:33 PM

    Mitch McConnell should by ALL MEANS go nuclear and start getting stuff done!! ENOUGH IS ENOUGH. Paddling in circles isn't doing anybody any good, period. If Mitch can't/won't do the job, then Chuckie is going to come in and DO WHAT HE WANTS.. then we can say GOOD BYE to the Republican party.

  • Omer Causey

    02/05/2019 11:39 AM

    Founder & Framer George Mason said, "When you're the minority, talk; when you're the majority, vote." Rule by supermajority was rejected by the Framers. The Senate rule is a political abomination. Does anyone seriously believe the Democrats will stick with the rule if they gain even a slim majority?