A change in Republican Senate leadership could mean filibuster reform

By | March 27, 2024

Defending the filibuster was a core tenet of Republican Senate orthodoxy under Senator Mitch McConnell’s time as party leader. But with an impending change in leadership, the Republican Senate Conference could soften its full support for the filibuster — and even reform it. And one of the leading candidates to replace McConnell may have inadvertently made a strong case for that years ago.

That Republicans of an earlier generation instinctively defend the filibuster makes political sense. Republicans controlled the Senate for only ten years between 1933 and 1995. They controlled the House for only four years. It is no surprise that Republicans have come to view the prospect of congressional action with more fear than hope, or that they have looked to the filibuster — and the often insurmountable hurdle it poses to passing legislation — to allay those fears. But times have changed: Republicans have controlled the Senate for 16 of the 29 years since 1995.

Beyond partisan concerns, Republicans should also worry that the gridlock in Congress — to which the filibuster contributes significantly — is straining the other branches of government with misdirected political pressure. In the face of congressional paralysis, presidents have aggressively interpreted existing legal authority, especially where politics make inaction untenable. The Supreme Court finds itself at the center of political controversy as it halts presidential overreach. That dynamic is a result of Congressional passivity.

Moreover, if Republicans do not reform the filibuster to get more legislation to the president’s desk, frustration on the part of Democrats in Congress and their base will continue to grow. Soon, Democrats could choose to eliminate the filibuster not to pass legislation but to transform the Supreme Court — by packing the court or imposing term limits. (Note that Democrats’ leading defenders of the filibuster, Sens. Joe Manchin and Kyrsten Sinema, are leaving the Senate.) A continued lack of reform could lay the groundwork for a full repeal — and one with a much more destabilizing purpose.

In light of these dynamics, the case for filibuster reform in the interest of preserving our fundamental arrangements for governance grows stronger by the day.

Those like us who support conservative reforms to the filibuster that align with the framers’ vision of the Senate’s deliberative role should be heartened to know that a leading candidate for Senate GOP leader has expressed his frustration expressed about the current state of the Senate. “I believe the Senate is broken — that’s not news to anyone,” Sen. John Cornyn of Texas said last month when he announced he would seek the leadership post. “The good news is that the problem can be solved, and I plan to play an important role in solving it.”

In fact, Cornyn has expressed openness to certain filibuster reforms.

In a 2003 article published in the Harvard Journal of Law & Public Policy, Cornyn emphatically argued against filibusters of judicial nominees. In doing so, he expressed strong support for majority rule as a first principle of American government. “The essence of our democratic system of government is simple: the majority must be allowed to govern,” Cornyn wrote. He also quoted Alexander Hamilton approvingly Federalist No. 22: “The fundamental maxim of republican government…requires that the feeling of the majority should prevail.”

Granted, Cornyn made sure to focus his article on filibusters of judicial nominees. He distinguished these from standard legislative filibusters. “The extensive use of filibusters to defeat legislation throughout this body’s history stands in stark contrast … to the historic absence of filibusters from judicial appointments,” Cornyn wrote.

But Cornyn may be convinced that the legislative filibuster’s historical background isn’t so strong after all. Of course, the filibuster—or the use of prolonged debate as a procedural tactic—has been around since 1806. However, its use has only really taken off in recent decades. While it is impossible to accurately measure filibuster frequency, Molly Reynolds of the Brookings Institution explains that the frequency of cloture movements (motions to end debate and thereby allow a vote on the underlying question) is the best proxy. These movements have increased dramatically in recent decades:

Sometimes a difference in degree is a difference in kind. If Cornyn were convinced that the current version of the legislative filibuster appears to lack the kind of historical pedigree that justifies it being, in the words of James Madison, “the fundamental principle of free government,” that majorities should govern the legislature , is trampled underfoot, then he could be too. convinced that filibuster reforms should focus on promoting deliberation. After all, the best defenses of the filibuster are similar to the best defenses of the Senate itself: slowing down debate and giving people time to reason.

That’s exactly what we mean when we propose that if a bill cannot obtain a filibuster-proof supermajority, the filibuster should be reformed so that the bill can still pass the Senate if it gets a simple majority twice – over time . of two consecutive congresses, with elections in between. Cornyn’s original 2003 proposal for filibuster reform for judicial nominees shared similar impulses. He proposed gradually lowering the threshold for confirming a candidate as the debate over that candidate progressed. In other words, the higher threshold from the outset would help ensure that there is sufficient debate and deliberation before a final decision is made. But ultimately the majority would rule. It’s the American way. Explicitly building in a cooling-off period (such as an interim election cycle) before a final simple majority vote works the same.

Cornyn also noted that there are strong constitutional arguments that “a majority of Senators retain the constitutional right to at least adopt rules abolishing or regulating the use of the filibuster.” If Cornyn were to be convinced of the need for this conservative filibuster reform, his previous writings also indicate that he agrees with us that there is no need to resort to the nuclear option to achieve it: a simple majority of senators has the power to change his policies. rules and reforms the filibuster at the start of a legislative session.

Of course, a lot has changed in the intervening years — in the Republican Party, the Senate and the country. It’s possible Cornyn’s views on the filibuster and openness to reform have also changed. But the need to rethink how to make Congress more effective and deliberative remains as important as ever.

Cornyn has spoken in the past about how the filibuster gives both parties peace of mind: In 2013, he said that anything a filibuster-reform party does “is what the minority will have to live with in the future” when they inevitably lose . their majority. But another way to protect your party and policy priorities in the future is to provisionally pass popular legislation, campaign on that proposed legislation, win elections as a result, and then pass that legislation for good. That’s the route the Republican Party should take when it comes to filibuster reform. It will prevent Democrats’ destruction of the filibuster and the frequent rush to push through highly partisan legislation that Cornyn rightly worries about.

It would also put Republicans in a much more powerful rhetorical position to combat Democrats’ argument that democracy requires a wholesale repeal of the filibuster: If Democrats are concerned about democracy, Republicans could argue: why do we care? won’t the American people have the opportunity to sign up? the majority’s legislative agenda by returning it to power after the public knows exactly what it plans to do? The majority could rule, but only after voters approved its choices.

The leading Republican, Abraham Lincoln, said in his first inaugural address: “Minority rule, as a permanent arrangement, is utterly intolerable.” Americans today still share the same democratic impulses. Republicans can reform and preserve the filibuster while still claiming the mantle of democracy. That is crucial. As Lincoln said, “Public sentiment is everything in America. With public sentiment nothing can go wrong; without it nothing can succeed.”

Sometimes ‘we must reform to preserve’. It’s the same with the Senate filibuster. Should he become the next GOP leader in the Senate, Cornyn will hopefully agree. His previous writings on filibuster reform provide some reason to hope he will do so.

Read more at De Uitzending

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