The Fix | Analysis
May 30, 2017 at 11:01 AM
This post has been updated.
After dancing around it for a bit, President Trump is now asking for it explicitly: He thinks Republicans should get rid of the legislative filibuster once and for all.
First he suggested earlier this month that Republicans either needed to remove the 60-vote threshold or get 60 GOP senators, and now he's not even pretending like he'll wait around for that second option.
The gravity of the proposal is massive. The higher threshold to end filibusters (60 votes) has been around for the vast majority of U.S. history. Their usage has skyrocketed in recent years, but they have stood for all this time as the thing that prevented a party with bare majorities from ramming its agenda through Congress. They play into the Senate's historical role of slowing down legislation; the Senate is known as the “world's greatest deliberative body” — and apocryphally as the saucer that cools the tea.
Trump feels he no longer has time to deliberate or let that tea cool. But it's not really his choice; it's up to the Senate GOP. So will Republicans there go along with it?
If Senate Majority Leader Mitch McConnell (R-Ky.) is to believed, the answer is a flat no.
And there are plenty of good reasons to believe it won't. Here are three.
1) The Senate has only 52 Republicans
Accomplishing this rule change would require Republicans to vote almost in unison to do it. They can't afford even three defections. And there are plenty of old-school Senate Republicans who have more affection for the traditions of the chamber than Trump does (which is to say, not much affection at all).
Some of these Republicans expressed regret recently when they voted to “nuke” the filibuster for Supreme Court nominees. Sen. John McCain (Ariz.) voted for it but said anyone who thought it was good for the Senate was a “stupid idiot.”
Sen. Orrin G. Hatch (Utah) suggested in November that he wouldn't consider nuking the whole concept of the filibuster: “Are you kidding? I’m one of the biggest advocates for the filibuster.” Sen. Lindsey O. Graham (S.C.), a Trump critic to this day, said it was “a horrible, terrible idea.” Sen. Lamar Alexander (Tenn.) said, “I think most Republicans understand that the Senate is not an institution to impose the majority's will on the country. It’s the one institution in the country that’s capable of developing consensus.”
(The Hill also counted four other critics of the idea.)
McConnell has repeatedly nodded to this tradition, saying after Trump's election: “To get results in the Senate, as all of you know, it requires some Democratic participation and cooperation.”
Could something happen to change their minds? It certainly did with Supreme Court nominee Neil M. Gorsuch. But that was a nearly unprecedented filibuster of an arguably pretty mainstream nominee to the highest court in the land. It allowed Republicans to reason that the filibuster was being abused in a narrow instance and could be nuked in that narrow instance.
Persuading skeptical Republicans to change the Senate on everything else is a much bigger question. It might happen one day, but it won't be done willy-nilly.
2) They would be powerless when roles are reversed
Nearly every Republican who is asked about this prospect nods to the fact that the GOP won't always be in power.
“We won't always be in the majority and, if you like limited government, I think the filibuster is wise,” Sen. Jeff Flake (R-Ariz.) said in a December interview.
McCain added: “We also have to keep in mind that at no time in history has one party always remained in the majority. That's democracy.”
Hatch: “It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.”
And here's McConnell: “I don’t think we should act as if we’re going to be in the majority forever.”
Just seven years ago, it was Democrats who had the trifecta of power in Washington. They even had a filibuster-proof majority for a while, before the GOP ended it with Scott Brown's election in Massachusetts. In other words: The GOP knows what it's like to be powerless, and it has used the filibuster to great effect in recent years while in the minority. This is a tool whose value is known to many Senate Republicans because they have relied on it.
And as noted above, taking the filibuster away for Supreme Court nominees doesn't really resonate as hugely as this change would. Supreme Court filibusters were rare, and the GOP wasn't really giving Democrats a new power that it had used frequently. (The GOP had filibustered other judges that President Barack Obama appointed, of course, which led Democrats to first roll back the filibuster for non-Supreme Court nominees in 2013.)
In a lot of ways, nuking the Supreme Court filibuster was a fait accompli. Getting rid of the legislative filibuster isn't so obviously likely to happen yet, and Republicans may well believe it will be there when they're in the minority again.
… And finally, perhaps the biggest reason …
3) They still don't trust Trump
Republicans are playing nice with Trump because they have to; he's the president, and running afoul of him has proven to backfire. But that's different from giving him expanded, historically unprecedented powers to pass his agenda. That could open up a can of worms they don't want to see the inside of.
One of the benefits of the 60-vote threshold for the majority party is that it's a good reason not to vote on something that you don't want to. If Trump proposes something extreme, it's a ready-made excuse not to bring it up. If a bill is going to be a really tough vote for certain Republicans, same deal.
Without the filibuster in place, Trump may be emboldened to pursue whatever extreme or big-government policies he wants, reasoning that he can at least cajole Republicans to go along with it. Maybe he suddenly wants Congress to vote on his travel ban. Maybe he'll push harder for a vote on the border wall. Or maybe he'll ask for extensive powers to use military force.
Republicans didn't completely trust Trump during the campaign, and they sure as hell still don't now — no matter what they say about him publicly. Giving this kind of license to a wild-card president who many of these Senate Republicans warned was dangerous and lacked the right temperament to be president seems a bridge too far.