Now that the GOP has swept into control of the Congress, it is immediately confronted with familiar realities. Because of the Senate rules, under most circumstances it is necessary to get 60 votes to get anything major done.
The Republicans have reached new depths in the abuse of the filibuster as the Senate minority over the past eight years. As they move into the majority, speculation has begun about what they might do about the filibuster rules.
In November 2013, Senate Majority Leader Harry Reid of Nevada and the Democrats used a parliamentary ploy notoriously nicknamed “the nuclear option” to change the precedents in the Senate. Since then, the existing filibuster rule is interpreted to mean that cloture can be invoked to end debate on presidential nominations (except for the Supreme Court) by a simple majority vote. (This is often mis-reported as “51 votes.” Actually, because a quorum in the Senate is 51, a simple majority can be as few as 26 senators.)
At the time, Minority Leader Mitch McConnell, who is now poised to become the new majority leader in January, complained bitterly on the Senate floor. He pointed out that in 2005, minority Democrats who were then filibustering a number of President George W. Bush’s federal circuit court nominees had opposed Republican threats to use the nuclear option.
“When Democrats were in the minority, they argued strenuously for the very thing they now say we will have to do without; namely, the right to extended debate on lifetime appointments. In other words, they believe that one set of rules should apply to them — and another set to everybody else,” McConnell said of their change of heart.
Now the shoe is on the other foot once again. Democrats will no doubt rediscover the important role the filibuster rules play in protecting the rights and privileges of the minority in the Senate. It will be a revelation for many, since as few as 15 Democratic senators (16 if Mary L. Landrieu survives her runoff in Louisiana) have served in the minority in the Senate. It is likely the filibuster will now be employed by Democrats to block major legislation which they oppose. And should a Republican be elected to the White House in 2016 without the Democrats returning to the majority in the Senate, the specter of the simple majority cloture on judicial nominations will again arise.
The Republicans have a series of decisions which they will soon make about the future of the filibuster in the Senate. While some in the Republican caucus will want to leave the new filibuster precedents intact so they can retaliate and help a Republican president to stock the federal bench, they have the opportunity to take the high road.
Republicans can, and should, restore the integrity of Senate Rule XXII. The rule continues to state that cloture requires “three-fifths of the Senators.” The nuclear option driven precedent is that those words are inexplicably interpreted to mean “a simple majority” when it comes to nominations.
Some in the GOP base will counsel just the opposite. Democrats arguing for major changes to the Senate’s filibuster rules even as they apply to legislation often asserted that if the Democratic majority didn’t make sweeping changes to the rule, Republicans — when they got control — almost certainly would. I have always doubted this charge was true, that it was a straw man. I now hope Republicans will not prove me wrong.
As Republican Charles E. Grassley of Iowa, who likely to become the Senate’s new Judiciary chairman, argued during the nuclear option debate, “It is nothing short of a complete and total power grab . . . and you can sum it up this way: Do whatever it takes.”
Richard A. Arenberg worked for Sens. Paul Tsongas, Carl Levin and Majority Leader George Mitchell for 34 years. He is co-author of “Defending the Filibuster: The Soul of the Senate” and is an adjunct professor of public policy and political science at Brown University.