Senate Republicans are too divided to pass party-line legislation, whether on a border wall or the repeal of the Affordable Care Act, and instead need Democratic support to get just about anything done. All of that makes the “nuclear option,” as the heavily partisan way of changing Senate rules is known, pretty pointless. There’s nothing that they can’t pass with 60 votes that they can pass with 51 votes.
Yet Trump does not see this reality and instead continues to demand that Republicans blow up the Senate’s long-held rules, most recently under the misguided belief that eliminating the filibuster would bring about legislation to build a massive border wall.
“Congress must immediately pass Border Legislation, use Nuclear Option if necessary, to stop the massive inflow of Drugs and People,” the president wrote Monday on Twitter.
A day earlier, he hit on the same theme. “Getting more dangerous. ‘Caravans’ coming. Republicans must go to Nuclear Option to pass tough laws,” Trump tweeted.
These presidential demands previously prompted senior Republicans to explain their continued support for the supermajority of at least 60 votes to cut off debate on most pieces of legislation.
In January, when Democrats forced a brief shutdown over demands to help undocumented immigrants who arrived in America as children and Trump took up the call to go “nuclear,” Republicans brushed that call aside.
“Now, we all know in the Senate the minority has the power to filibuster,” Senate Majority Leader Mitch McConnell (R-Ky.) said in a Senate floor speech that weekend. “I support that right from an institutional point of view.”
But this week, amid tweets about the hot-button issues related to immigration, most Republicans stayed out of the fray, using the two-week spring break as an excuse to just avoid the press corps. Aides to McConnell, for instance, declined to discuss the latest demands from the president.
Friday marks the first anniversary of the last time a majority leader set in motion the nuclear option, as the rule change was dubbed 15 years ago because it was considered such a partisan move that the fallout would be far and wide. But then, McConnell knew what he’d get by going nuclear.
Last year, Democrats led a brief filibuster of Justice Neil M. Gorsuch’s nomination to the Supreme Court. Every Republican offered glowing endorsements for Gorsuch, so McConnell knew that if he forced a rules change vote, he would get a big deliverable: the confirmation of Gorsuch.
McConnell’s move to change the rules on Supreme Court nominees — done in a party-line manner that violated the decades-old principle that permanent rules changes should have a two-thirds majority — contradicted his own previous position. In 2013, McConnell warned Harry M. Reid (D-Nev.), then the majority leader, that history would remember him as “the worst leader here ever” by using the procedure to make the confirmation of all presidential appointees subject to a simple majority, except for Supreme Court justices.
But by the spring of 2017 McConnell went down the same route to confirm Gorsuch. He knew the payoff — reclaiming the conservative tilt of the Supreme Court, with five justices appointed by Republican presidents — was worth the charge of hypocrisy.
As Republicans blew up the rules, Sens. Susan Collins (R-Maine) and Christopher A. Coons (D-Del.) hustled around the Senate floor to get signatures to a letter promising to leave the legislative filibuster intact. “We are steadfastly committed to ensuring that this great American institution continues to serve as the world’s greatest deliberative body,” they wrote.
In all, 61 senators signed the pledge, almost half of whom are Republicans. Would these GOP senators ever go back on their word and support ending the legislative filibuster?
Maybe, but the payoff would have to be clear and immediate to even consider such a reversal. Right now, no such payoff exists.
McConnell has just 51 Republicans now, and with Sen. John McCain (R-Ariz.) battling brain cancer at home, it’s basically a 50-member caucus. Blowing up the legislative filibuster would mean no Democratic support for anything remotely controversial.
Centrist Republicans would oppose building a border wall, while conservatives would oppose a path to citizenship for the “dreamers” who are protected under the Deferred Action for Childhood Arrivals program.
Trump backed a compromise that put those two proposals together, in February, and it received a measly 39 votes. On health care and taxes, Republicans have already used a fast-track parliamentary process to get around the Senate filibuster. The practices proved that Republicans remain deeply divided on health care — McCain flashed a thumbs-down in July to kill off the repeal of the Affordable Care Act — and genuinely united on taxes.
There’s no agenda item sitting on the GOP shelf that would pass with exactly 50 or 51 votes. Over the first 15 months of Trump’s presidency, the Senate has had fewer than 10 votes on legislative matters in which Republicans won by a vote or two, according to Democratic estimates. And those votes came during budget debate, during which the fast-track rules already applied.
McConnell, whose autobiography is “The Long Game,” is keenly aware of the potential blowback in three years if Democrats hold the White House and congressional control. With no legislative filibuster, they would have the votes to vastly expand the ACA, ban assault weapons and impose stiff environmental regulations.
Trump rarely plays the long game; he’s always looking for the deal right ahead of him. Someone needs to explain to him that his short-term agenda, in a post-nuclear-option fallout, would be in even more dire shape.