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:
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.
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.)
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.
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: “...in 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!