Why the Filibuster Might Survive
The filibuster in the Senate has survived Barack Obama's presidency. Just barely. It might survive Donald Trump's presidency, too, but there's no guarantee.
For now, a minority of the Senate can still win by filibuster unless 60 senators vote (for "cloture") to defeat them. A filibuster, in practical terms, doesn't consist of senators making long speeches to shut down other business; all it requires, and all it has required for decades, is for the minority to let the majority know a cloture vote will be needed in order to move forward on something.
There are exceptions. Since 2013, executive-branch nominations and judicial nominations other than for the Supreme Court cannot be blocked by filibusters.
And, on legislation, a special bill called "reconciliation" can't be blocked by filibuster. The rules allow reconciliation only if it was enabled by a budget resolution passed by the House and Senate. There's no limit to how much can be stuffed into one reconciliation bill (in other words, it can be composed of many separate, unrelated bills all stitched together), but there is a limit (the "Byrd rule") about what kinds of measures can be included: Each provision must have a budgetary impact.
All of that may sound obscure and procedural, but it matters a lot. For example, it effectively makes Obamacare repeal subject to filibusters. A simple bill to repeal would certainly be filibustered and therefore would require 60 votes. And doing full repeal through reconciliation would -- unless the rules change -- be impossible, as conservative health-care expert Avik Roy explains.
So what about changing the rules?
There will probably be 52 Republican senators in the new 115th Congress. Assuming the vice president would break any tie in favor of change, it would take 50 of those 52 to do away with the filibuster.
It's by no means certain those votes are available.
For one thing, several senior Republicans, perhaps including John McCain and Lamar Alexander, may sincerely respect the traditions of the Senate and be reluctant to eliminate them. Moderate conservatives such as Susan Collins and Lisa Murkowski might feel the current rules give them more leverage than a Senate with pure majority-party rule. Iconoclastic conservatives such as Jeff Flake, Mike Lee and Rand Paul might similarly be hesitant to empower the majority.
Cynical Republicans might, as Congress scholar Gregory Koger suggests, see some advantages in having some of their agenda obstructed by Democrats rather than being put in the position of having to pass some items. These Republicans might not think those items are good ideas or know that reaching internal Republican agreement on them might be too hard.
Far-sighted Republicans might worry about the longer-term consequences of giving a future Democratic majority, whenever that appears, the ability to whatever it wants.
And every senator has an incentive to keep the filibuster because it strengthens their individual leverage, even if it reduces the ability of their party to get things done. That's the main reason the filibuster exists in the first place.
It is much weaker in a partisan period, when many senators care more about the party platform than about specific benefits for their states, it still may matter. And the demands from the new White House to Get Things Done will be intense, bolstered by pressure from activists, industry and talk radio yakkers.
The Democrats will have some limited ability to affect what happens. If they blockade the Supreme Court vacancy, then Republicans would rapidly end the filibuster for those nominations.
Mostly it will be a decision Republicans make. They may be satisfied by enacting most of their agenda through one big reconciliation bill, even if it would leave fairly significant (and somewhat random) parts of it out. They may not.
Many Republicans are willing to bulldoze anything in their way to get what they want -- but for this (and many other things), it's not the "many Republicans" who matter. It's the few Republicans who may, or may not, be worried more about the long-term consequences of wrecking the institution than they are about some short-term political goal.
At least, that's what everyone expects. One Senate election remains, in Louisiana, where the Republican is favored. It's always possible that one Democrat or more could switch parties, although there are no signs that is about to happen. And if Trump selects any senators for his administration (or for the vacant Supreme Court seat), a new election might follow, depending on the relevant state law.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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