Tuesday, March 23, 2021

Filibustering The Filibuster

 Recently, Senate Republican Minority Leader Mitch McConnell issued a threat to his Democratic colleagues. I.e if you eliminate the filibuster (in which a 60% vote is needed to shut off debate and move a bill forward to a vote), the Republican minority will pursue a “scorched earth” posture towards  all future Senate business. McConnell went on to say that they would use all available Senate rules and procedures to tie up legislation and drag out any proposed legislation as long as possible, thereby rendering the Senate ineffective and unable to accomplish any business or Democratic agenda priorities. (Unsurprisingly, the public’s view of the Senate’s accomplishments and effectiveness is already low, at best.) Further, when the time comes that Senate control flips back to the Republicans (which it inevitably will at some point in the political ebb and flow over time), Democrats will be shut out of any participation or consultation in matters coming before the Senate. To further emphasize his point, McConnell subsequently referred to the filibuster as “Kentucky’s veto.”

It all seems like a pretty scary and intimidating threat, and typical for McConnell as a means for maintaining some level of control over Senate business for his Party. Scary, at least until one looks at the intimidation more closely and sees it to be essentially a hollow threat. In reality, McConnell has already made good on that promise over the past six years since Republicans gained control of the Senate in 2014. Since then, McConnell has de facto exercised his own personal filibuster against virtually any Democratic-sponsored legislation by personally refusing to allow any such proposals even to come to the floor for a vote. Nor has there been any meaningful “consultation” or input solicited, allowed, or accepted from Democrats on Republican-sponsored legislation. To listen to Mitch McConnell (and several other particularly egregious senators) protest about a “lack of partisanship” in the Senate is at best irony, at worse just another example of hypocrisy in the extreme that marks much of the political debate today.

The much-maligned tool of the filibuster was introduced in its present form around one hundred years ago during the debate over the Treaty of Versailles ending World War I. Ironically, the procedure (“Rule 22”) was originally instituted as a means to END senate debate, which had heretofore allowed unlimited speaking time for Senators. Rule 22 was therefore adopted to end unlimited debate (and allow business to move forward) by a 2/3rds vote (now 3/5ths / 60 votes). In today’s time, the Rule has morphed into being a method to CONTINUE debate, since it is virtually impossible to get 60 votes on any measure – whether procedure or legislation. Additionally, an individual choosing to execute a filibuster used to be required to stand on the floor and speak continuously until they exhausted themselves or were voted down (think the iconic Jimmy Stewart scene in the 1930s movie “Mr. Smith Goes To Washington”). No other business could be conducted while the filibuster was occurring  and the senator was speaking. Today, a senator only has to state off-camera his/her intention to filibuster and the mechanism is initiated – the issue at hand is thereby tabled for an unlimited time. No “closure” vote is publicly taken; no non-stop speeches are given. Meanwhile, other Senate business moves on unabated and unaffected. No muss, no fuss, all virtually invisible to the public.

It should be noted, however, that Rule 22 is not carved in stone. Harry Reid, the previous Democratic Majority Leader, became frustrated at Republican filibustering of Obama’s Executive Office and Judicial appointments. So he changed the Rule to exempt Executive branch appointments, and federal judges other than to the Supreme Court, to be exempt from the 60-vote requirement. Predictably, Mitch McConnell went ballistic over this change and the loss of his leverage. Hell hath no fury like a political leader scorned. Nevertheless, when McConnell became Majority Leader, he was perfectly happy to not only continue the policy for President Trump’s nominees, but to even expand the exemption to include Supreme Court nominees.

We are now two months in with Joe Biden’s presidency. Biden has spoken of a “big agenda” of change: the Covid relief package just passed; renewed voting rights protection; immigration overhaul; climate change; major infrastructure investment; etc. However, he is supported legislatively with only a narrow Democratic Party majority in the House, and a 50/50 split in the Senate. 60 votes in the Senate on anything looks every bit like wishful thinking – stalemate for stalemate’s sake itself. Past history during Obama’s presidency shows that Republican requests for “input and negotiation” in the end have no meaningful substance. McConnell has demonstrated numerous times over that his word is unreliable and not his bond. In the face of these realities, what’s a President to do?

There are numerous calls from supporters of the Biden agenda to eliminate the filibuster option. Or to exempt voting rights legislation (or other categories to be identified) from its purview. Or to reinstitute the requirement for speeches on the floor, and full-Senate votes for closure (or not), so that voters can track the actions of their senators. Or contrarily, to leave everything in place as is. Plus perhaps other ideas not yet identified. What is true is that when you are in the minority, the filibuster is a precious tool for blocking the potential extremes of the other Party. When you are in the majority, it is the devil’s curse and a tool that prevents America’s progress. And at some point in the fickle cycle of shifting political opinion, today’s majority is destined to become tomorrow’s minority. Each side gets its turn at the helm. That turn could easily happen only two years hence.

It will be interesting to see what procedural route(s) Democratic senators take. Move cautiously? Or damn the torpedoes and move forward while you can? As usual, easy answers can have hard, unintended consequences. So think it through. In the meantime, political theater and rhetoric seem to continue to be the drivers, while real solutions to our needs await their turn.

©   2021   Randy Bell             https://ThoughtsFromTheMountain.blogspot.com