America would look quite different without Senate filibusters in the first six years of President Barack Obama’s administration, giving pause to conservatives as President Donald Trump demands an end to the legislative tool.
“This would end the Senate as we know it, and make it just a smaller version of the House,” Brian Darling, president and founder of Liberty Government Affairs, told The Daily Signal. “Getting rid of the filibuster makes it a lot easier to grow government.”
Darling and other conservatives note that Obama failures, such as a “cap and trade” energy bill in his first term and gun control legislation in his second, would have been successes without Senate Republicans’ ability, as the minority party at the time, to block bills by using the legislative filibuster.
“Obamacare would be much worse, because after Scott Brown’s election, Democrats lost their 60-vote majority and they had to dial back,” Darling said.
In early 2010, Brown won the Senate race in Massachusetts, denying Democrats a filibuster-proof majority in the Senate.
The filibuster allows a minority in the Senate, or sometimes just one member, to temporarily block legislation that normally could pass with 51 votes of the chamber’s 100 votes. It takes 60 votes to break a filibuster and advance a bill to a floor vote.
Republicans and Democrats alike have expressed both admiration and disdain for the procedure, depending on which party holds the Senate majority.
Ending the legislative filibuster also would empower Senate leadership and weaken individual members, Darling said.
One example, he said, was when a 2013 effort by Sen. Ted Cruz, R-Texas, to cause a temporary government shutdown kept alive the GOP agenda to repeal Obamacare.
But, reeling from the Senate’s failure to pass any version of legislation to repeal and replace Obamacare, Trump insisted in a series of tweets over the weekend that it is time to do away with the filibuster, which he considers outdated.
A February report by The Heritage Foundation, however, stressed that the “nuclear option”—politicos’ term for ditching the filibuster—isn’t the only means at Republicans’ disposal to combat Democrats’ obstruction.
Rather, the think tank’s report said, standing Senate rules could be effective.
Specifically, the report cited Rule XIX, also known as the two-speech rule, for the Senate floor. The rule allows the Senate to remain in the same legislative day until filibustering members exhaust their ability to speak on a nominee.
The rule may be used to shorten the amount of time senators are allowed to filibuster. It is in force until no members remain on the Senate floor who wish to speak or are allowed to speak.
In 2013, then-Senate Majority Leader Harry Reid led a change in rules to do away with the filibuster for presidential nominees to judicial posts—primarily as a way to push Obama’s lower court judges through Republicans’ objections.
Reid, D-Nev., carved out an exception for Supreme Court nominees. However, the Republican majority killed it this year in order to confirm Justice Neil Gorsuch to the high court.
Darling, a former aide to Sen. Rand Paul, R-Ky., did a 2011 paper on the filibuster for The Heritage Foundation, where he was in charge of relations with the Senate.
Darling said he supports having the filibuster in place for both judicial nominations and legislation.
But he stressed that doing away with the filibuster for legislation could be a bigger problem. He said that without it, Obama would have signed more bills into law from 2009 through 2014.
In 2010, the House passed the “cap and trade” bill to regulate carbon emissions. The bill died in the Senate, though, when Reid didn’t think he had the support to push it through the chamber, conservatives said.
The bill would have set limits for carbon emissions but allow companies to trade permits to meet the limits. Opponents called it “cap and tax.”
On another front, the 2013 gun control bill sponsored by Sens. Joe Manchin, D-W.V., and Pat Toomey, R-Pa., gained the support of 54 senators but was opposed by 46 senators.
The bill would have required background checks before all commercial gun sales become final. Four Democrats voted against the bill and three other Republicans joined Toomey to support it.
Republican leaders reportedly are unlikely to follow Trump’s advice and turn against the legislative filibuster.
Sen. Jeff Flake, R-Ariz., has been one of the most vocal, telling CBS News it would be a bad idea.
“I don’t want to lurch back and forth every couple of years from one extreme to the other,” Flake said. “Those rules are there for a reason. They’re good. … They invite us to work across the aisle.”
So, what if Democrats simply do away with the legislative filibuster in the Senate if they regain the White House and majorities in Congress? Trump appears to think they would.
Likely not, said Thomas Binion, director of congressional and executive branch relations for The Heritage Foundation.
“No, they won’t” do away with the legislative filibuster, Binion told The Daily Signal, adding about the Democrats:
They’ve had the chance and didn’t. The filibuster protects them, too. They have their own list of things [Republicans] would have done without the filibuster. It also shields them from tough votes for red state Democrats to take.
Report by The Daily Signal’s Fred Lucas. Originally published at The Daily Signal.