The Washington PostDemocracy Dies in Darkness

With little fallout from nuclear option, Senate’s legislative filibuster is in jeopardy

Senate Majority Leader Republican Mitch McConnell (R-Ky.) participates in a news conference Tuesday after a Republican policy luncheon on Capitol Hill.
Senate Majority Leader Republican Mitch McConnell (R-Ky.) participates in a news conference Tuesday after a Republican policy luncheon on Capitol Hill. (Michael Reynolds/EPA-EFE/Shutterstock)
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The fallout from the Senate’s so-called nuclear option has largely dissipated.

And without much fallout, the fate of the once-revered process known as the legislative filibuster faces its greatest peril in more than a century.

Senate Republicans are using a complex parliamentary move this week to unilaterally change the rules to make it easier to confirm lower-level nominees to the federal courts and agencies.

It will mark the third time in less than six years that the majority party pulled the trigger on this controversial procedure, breaking long-standing customs requiring a two-thirds majority to alter Senate rules and procedures.

Democrats went first, in fall 2013, followed by Republicans in April 2017 and now the GOP again. What was once considered so unthinkable that Senate elders warned of a “nuclear winter” to follow has turned into an almost biennial move designed to thwart minority-party rights.

The Senate can’t even agree when its own filibuster rules should apply. (Video: JM Rieger/The Washington Post)

The previous fights entailed much bigger prizes: Democrats, then under the leadership of Sen. Harry M. Reid (Nev.), overcame a GOP blockade of nominees to the second-most-important federal court, the D.C. Circuit Court of Appeals, and Republicans installed Justices Neil M. Gorsuch and Brett M. Kavanaugh onto the Supreme Court.

Now, the Republican reward is simply to reduce the number of hours it takes in floor debate to confirm these lower-level nominees.

If one side is willing to “go nuclear” just to more quickly confirm the assistant secretary of Commerce — that’s the nomination that will start the process Wednesday — some Senate majority leader in the not too distant future seems certain to push to eliminate the 60-vote threshold so they can pass a major legislative proposal.

That would eliminate the last vestiges of what’s left of the filibuster made famous by Jimmy Stewart in “Mr. Smith Goes to Washington.”

“Which is why I’m working so hard to find a solution,” Sen. James Lankford (R-Okla.), the architect of the new GOP proposal, said Tuesday.

Senate’s sluggish start reflects the Republicans’ narrow policy agenda

Lankford wants to reach a bipartisan deal to change rules under normal procedures, arguing that a future Democratic president would also benefit from this change. But Democrats are furious about other changes in custom, particularly President Trump’s refusal to consult Democrats on nominations that used to require sign off from home-state senators.

By late Tuesday, with no sign of compromise, Senate Majority Leader Mitch McConnell (R-Ky.) set in motion the process for a party-line vote to change the time limits on some nominees.

And Democrats barely fought back, not threatening any “fallout” from the action. This GOP action only provides more fodder for liberal activists to push for complete elimination of the filibuster.

Some activists believe the Senate’s cumbersome rules are the single largest impediment to advancing their agenda. They have created an abolish-the-filibuster litmus test on the presidential campaign trail, and quite a few of the 2020 aspirants have at least signaled a willingness to consider it.

These liberals see abolishing the filibuster as the only way to advance policies such as Medicare-for-all and the Green New Deal, which have drawn no interest from any Senate Republican.

So under their best-case scenario in 2020, the new Democratic president would be incapable of delivering on those promises because a Democratic House would pass big legislation, only to see it die via GOP filibuster in the Senate.

Abolishing the filibuster also eases the path to grant statehood to the District of Columbia and Puerto Rico, probably providing more liberals in the Senate to advance the chances of passing Medicare-for-all.

The Senate’s self-proclaimed institutionalists are an ever-shrinking group that could now get around town in a single SUV, but they are alarmed nonetheless.

“Members of both parties are making bigger and bolder and stronger and broader proposals about changing everything about how way this place works, in ways that are really not constructive,” Sen. Christopher A. Coons (D-Del.) said Tuesday.

Sen. Brian Schatz (D-Hawaii) said the chamber is heading for a reckoning about the overall role it plays in this era of hyper-partisanship. This environment leaves senators most fearful of primary voters back home and leaves no incentive to the Senate’s grand tradition of being the bipartisan cooling saucer.

“The question for us is: Shall we try to renew the old Senate or retain what remains of it, or do we need to figure out what the Senate is in the modern era? That’s one of the questions that I’ve been grappling with,” Schatz said.

McConnell aims to use Green New Deal to divide Democrats, but party is unifying against his show vote

Schatz, who arrived a little more than six years ago, said he was exhausted by the debate over who was to blame for the latest iteration of a fight that goes back almost 15 years, to when Republicans were in charge and Democrats were filibustering GOP nominees.

“Re-litigating all of the fights around the nuclear option of the last 15 years is fruitless,” he said.

However, this week’s floor debate turned into massive litigation of the battles of yesteryear, from the Reagan and first Bush administrations through the second Bush White House and the Obama years.

“We warned them that if they continued down that path, we would follow their precedent when the tables were turned, but the obstruction continued,” said Sen. Charles E. Grassley (R-Iowa), the longest-tenured GOP senator.

Sen. Lamar Alexander (R-Tenn.), who has negotiated previous deals to get out of rules fights, argued Democrats should break ranks the way that a dozen Republicans did three weeks ago in supporting the resolution to oppose the president’s declaration of a national emergency to fund the construction of border wall.

“I don’t think rising above politics ought to be a one-way street,” Alexander said.

Of course, within minutes of that Senate vote, Trump tweeted “VETO!” and followed through the next day by vetoing that resolution.

So Democrats don’t view those 12 GOP votes as major profiles in courage.

Institutionalists see this as the next evisceration of the Senate’s role in overseeing the executive branch, turning the Senate more and more into a processing plant in which presidential nominees fly through in automated fashion, several a day.

“We are on a path towards becoming the House of Lords and being largely irrelevant,” Coons said.