The Filibuster's Days May Be Numbered

The filibuster may be dying the death of a thousand cuts.

After Majority Leader Harry Reid implemented the nuclear option to eliminate the filibuster for cabinet appointees and judicial nominees below the Supreme Court in 2013, Mitch McConnell, leader of the Republican minority at the time, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”

McConnell’s warning was prescient. It was only four years later that Republicans used Reid’s rules to confirm Donald Trump’s cabinet. Then McConnell dropped his own nuke and removed the filibuster for Supreme Court nominees, allowing Republicans to confirm Neal Gorsuch and Brett Kavanaugh over Democratic objections. Now McConnell is about to go nuclear again.

American military strategists have long embraced a policy of no-first-use when it comes to nuclear weapons. The situation in the Senate is an example of why. Once one nuke is dropped, it becomes easier and easier for others to launch their own nuclear weapons at more and more targets. The first use of a nuclear weapon expands the Overton window to where usage of more nukes is acceptable.

NBC News reports that Mr. McConnell may drop his next nuke as early as today. Yesterday, in a party-line vote, the Senate rejected a change to rules that would have limited debate on cabinet appointees and district-level judicial nominees to two hours from the current 30. This would make it easier for the Senate to confirm more of President Trump’s judicial nominees. Even though the Senate required 60 votes to make the change, McConnell has the ability to use procedural tactics to make the change with only a simple majority.

Burgess Everett writes in Politico that each time the filibuster is weakened unilaterally by one party, it becomes more likely that the measure will eventually be totally eradicated. Already, members of both parties are claiming that the other wants to eliminate the filibuster so why not take pre-emptive steps and do it to their own advantage?

“If eliminating the legislative filibuster will serve Sen. McConnell’s purposes, he’ll eliminate it,” said Senate Minority Whip Dick Durbin (D-Ill.). “After what Sen. McConnell has done to this institution, there will be many people who will be putting pressure on us to do the same thing.”

“It’ll go down the road,” Senator Richard Shelby (R-Ala.) said. “If the Democrats take control of the Senate and we’re in a strong minority then they’ll change it immediately.”

President Trump has also made repeated calls to eliminate the filibuster. Mr. McConnell rebuffed those calls as recently as last June, but the majority leader’s repeated weakening of the filibuster whenever it is convenient may be dooming the Senate rule.

The argument against the filibuster is basically that Congress is too divided to compromise. Neither party has enough votes to force its will on the other without convincing a few senators to cross the aisle. While this division is frustrating to party activists, the voters who keep Congress decided seem to prefer stalemate to one-party rule.

Both sides will be to blame for killing the filibuster. Harry Reid uncorked the nuclear genie from his bottle but Republicans have taken the idea and run with it. If Republicans eliminate the filibuster, it will be the GOP that bears the brunt of voter anger for the change.

Regardless of who eventually pulls the trigger to finally eliminate the traditional safeguard for the Senate’s minority, the country will be worse off without the filibuster. The need for 60 votes to advance legislation acts as a speed brake to slow down bad bills. Without the restraining influence of the minority, a bevy of bad ideas could easily become law. National policy could veer wildly from one side of the political spectrum to the other.

While eliminating the filibuster would allow Republicans to fund President Trump’s wall and repeal Obamacare in the short-term, it is very likely that after the 2020 elections the situation will look very different. If Democrats win control of the Senate and the presidency while retaining the House of Representatives, the absence of the filibuster would allow them to defund the wall while, at the same time, passing a veritable liberal wish list that includes gun control, Medicaid-for-all, higher taxes, and who knows what else. Even with a large Republican minority, the Democrats would be unstoppable until after the next election.

It may already be too late to prevent the death of the filibuster, but Mitch McConnell and his Senate Republicans should think very carefully before further weakening the tradition. They may regret it if they do. And they may regret it a lot sooner than they think.

Originally published on The Resurgent

Steve Bannon Declares War On Republicans

With a call for one sitting Republican senator to resign and announcement that he plans to back primary challengers for nearly every sitting Republican in the Senate, Steve Bannon, former White House strategist and past and present chairman of Breitbart News, has effectively declared war on the Republican Party. While ostensibly still backing President Trump, Bannon’s effort also includes challengers to some Trump allies.

Bannon’s primary target at the moment is Sen. Bob Corker (R-Tenn.). After Corker and Trump engaged in a flame war on Twitter over the weekend, Bannon called for the Tennessean to resign for his disloyalty to President Trump. In a tweet, Corker, who is not running for re-election,  likened the White House to a “day care center” and said in a New York Times interview that President Trump acted “like he’s doing ‘The Apprentice’ or something” and that his lack of diplomatic skills could put the world “on the path to World War III.”

“If Bob Corker has any honor, any decency, he should resign immediately,” Bannon told Sean Hannity on Fox News.

“This is what they think about President Trump behind closed doors,” Bannon added. “He happened to tell The New York Times exactly what he thought, it's totally unacceptable. In a time of war, we have troops in Afghanistan, in the Northwest pacific and Korea. We have a major problem that could be like World War I in the South China Sea. In the Persian Gulf, we have American lives at risk every day.”

That Bannon equates Corker’s comments with all Republican incumbents provides insight into why he plans to try to unseat practically every Republican senator. The Washington Post notes that Sen. Ted Cruz (R-Texas) is reportedly the only senator who will not be fending off a Bannon-backed challenger, but a CNN source said, “Nobody’s safe.” Cruz was a favorite of Bannon’s Breitbart until Donald Trump usurped that role. Cruz angered many Trump supporters with his long-delayed endorsement of Donald Trump and his heated exchanges with Trump in the primary.

Breitbart quotes Andy Surabian, a senior adviser to the Great America Alliance and ex-White House aide, who said, “We’re planning on building a broad anti-establishment coalition to replace the Republican Party of old with fresh new blood and fresh new ideas.” The site notes that the Great America Alliance is a “pro-Trump Super PAC.”

The Breitbart article also quotes Family Research Council president Tony Perkins, who said, “The conservative tidal wave that carried Donald Trump into the White House may soon be eclipsed by what appears to be a conservative tsunami that threatens the [Republican] establishment death grip on the U.S. Senate.”

Much of the antipathy to the “establishment” Republicans seems to stem from Majority Leader Mitch McConnell’s (R-Ky.) refusal to end the filibuster and change Senate rules to allow passage of bills with a simple majority, commonly referred to as the “nuclear option.” President Trump urged McConnell to change Senate rules in a tweet in August. Mr. McConnell told Politico in April, “There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one.”

Surabian hinted at the “nuclear option” when he noted, “The group of candidates we are looking to support in 2018 are all bound together in their agreement that the new Republican Party must be bold in their thinking and aggressive in their tactics.”

Bannon’s tactics have potential downsides. If his candidates defeat Republican incumbents in the primary, they still must win the general election. This could present a problem for some Bannon-backed candidates, particularly in moderate states. President Trump alluded to this risk in deep red Alabama when he campaigned for incumbent Luther Strange (R-Ala.) against primary challenger Roy Moore, who was supported by Bannon. With a slim majority of only two seats, Bannon’s war against Republican incumbents could tip the Senate to the Democrats.

A second problem is that, if Bannon’s plan succeeds and the filibuster is killed permanently, Democrats would have the same advantages the next time they are in power. President Trump’s agenda could be passed more easily without the cloture rule, but it would also be easier for the next Democrat majority to repeal Trump’s reforms and enact their own leftist agenda.

Bannon’s frontal assault on sitting Republicans brings the GOP civil war into the open. Trump supporters like Bannon are attempting to purge the party of traditional Republicans who represent the “establishment,” regardless of voting records or conservative credentials. CNN notes that even John Barasso (R-Wy.), typically considered a Trump ally, is a target of Bannon’s effort.

It is normally very difficult to unseat incumbents, but 2018 may be different. There may be additional retirements that leave open seats vulnerable to Bannon’s candidates. Further, polling shows that President Trump is far more popular among Republicans than congressional leaders. If Republican voters back primary challengers supported by Bannon and President Trump over party incumbents, it will signal a permanent shift in the direction of the Republican Party. 

Originally published on The Resurgent

Filibuster's days may be numbered

Many are assessing the future after last night’s Trump victory, an outcome that few expected. There are many questions about the future and the upcoming Trump Administration. One question involves the future of the filibuster.

The Senate filibuster rule requires a majority cloture vote to end debate on legislation before it can take a final vote on a bill. The filibuster rule is not specified in the Constitution but has been a part of Senate rules since 1841 according to the Senate website. In 1917, the Senate passed a rule requiring a two-thirds vote for cloture to end debate on a bill. The requirement was reduced to three-fifths, 60 votes, in 1975. Majority Leader Harry Reid ended the filibuster on many presidential appointments in 2013.

Since Republicans took control of the Senate in 2014, Democrats have successfully used the filibuster rule to deny cloture on a number of Republican bills. There were 54 Republicans in the Senate, six short of the 60 vote requirement to end debate and move a bill forward. This Democratic road block led many conservatives to call for an end to the filibuster. Under President Obama, this would have been a strategic error because Republicans still would not have had the votes to override President Obama’s veto.

In 2017, when Donald Trump becomes president, he will have a Republican majority in both the House of Representatives and the Senate. Even with those majorities, Democrats still retain enough votes to block cloture on Republican bills. The road block will still exist.

To avoid Democrats bottling up legislation, the new Republican Senate may invoke the “nuclear option” and choose to eliminate or weaken the filibuster rules. Since the filibuster is not specified in the Constitution, it can be easily changed at the beginning of a Senate session by the majority party.

Democrats had already signaled a change to the filibuster if Hillary Clinton had won the election. Sen. Harry Reid (D-Nev.) told Talking Points Memo, “If the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told 'em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.”

Opinions of the filibuster vary depending on which party is in power. The filibuster protects the minority party so Democrats, who were critical of Republican use of the filibuster, can be expected to defend it fiercely with Republicans in the majority. The reverse is also likely to be true.

After six years of Democrat obstructionism in Congress, the temptation to eliminate the filibuster may be too much for Republicans to ignore. With a broad mandate and angry Republicans eager to start rolling back President Obama’s legacy, the filibuster’s days are likely numbered. 

Originally published in The Resurgent

Why the Republicans couldn’t defund DHS

It’s not lack of principles, stupid!

The failure of the Republican majority in Congress to defund President Obama’s executive amnesty this week has once again engendered bitterness among some conservatives toward the party’s leadership. Accusations that John Boehner and Mitch McConnell caved to Obama’s pressure are widespread, but the true cause of the failure to can be found within Senate traditions and the Constitution itself. The Constitution may also provide the ultimate solution to Obama’s executive overreach.

Because the authors of the Constitution distrusted a strong central government, they made it difficult to enact new laws. Because the framers worried that the majority might tyrannize a minority, they gave the president veto power over laws passed by Congress and the courts the right to strike down laws judged to be unconstitutional. Democratic filibusters must also be considered by Republican leaders, but it is the presidential veto that holds the greatest threat to the Republican agenda.

Cloture, filibusters, and vetoes! Oh, my!

Under the Constitution, the House and Senate pass bills with a simple majority vote, but the Senate has traditionally allowed unlimited debate before a vote. The strategy of a filibuster, a prolonged speech to prevent a vote, has long been used by minority senators to prevent those in the majority from passing legislation. Filibusters no longer require longwinded speechmaking. Under current Senate rules, to end debate on a bill, senators must first vote for cloture. According to the Senate website, the cloture rule was intended to give senators a means to overcome filibusters and dates back to the Woodrow Wilson Administration. Originally, the rule required a two-thirds vote to end debate on bill, but this was changed to three-fifths, 60 votes, in 1975. A filibuster is now merely the inability of the majority party to get enough votes for cloture.

What the cloture rule means to conservatives now is that, since Republicans hold 54 Senate seats, they will need at least six Democratic votes to invoke cloture and bring bills to a vote. If the Democrats remain united, they can deny the Republicans the ability to bring their agenda to a Senate vote, in which case it can never become law. This was the case with the attempt to defund DHS.

Bills that are passed by both the House and Senate face another constitutional hurdle before becoming law. According to the Constitution, bills passed by Congress then go to the president where they can become law in one of two ways. First, the president can sign the bill and it immediately becomes law. Second, the president can do nothing and the bill will become law in 10 days as long as Congress remains in session.

The president can also reject, or veto, the bill. For a regular veto, the president sends the bill back to Congress with a message describing why the bill was vetoed, as in President Obama’s veto of the Keystone pipeline. More rare is the pocket veto. If Congress adjourns before the 10 days is up and the president fails to sign the bill, the bill never becomes law.

The drive to override

Congress can override a presidential veto. When the president returns the bill to Congress, the bill can still be passed without the president’s approval. Overriding a veto requires a two-thirds vote of the members present. A bill that is subject to a pocket veto simply dies and cannot be overridden. It must be debated and passed again by the next Congress.

In the current Congress, overriding a veto would be difficult in spite of the historic Republican majority. Assuming all congressmen were present, a two-thirds majority would require 67 Senate votes and 288 House votes. This means that 13 Democratic senators and 41 Democratic representatives would have to vote against the president even if all Republicans were united. The Congressional Research Service reports that between 1789 and 2004 only 106 of 1,484 regular vetoes were successfully overridden, a seven percent success rate.

Most of President Obama’s signature pieces of legislation were passed in his first two years when the Democrats held control of both houses of Congress, but Democrats in 2009 through 2010 also had an important advantage that today’s Republicans lack: a president who would sign their legislation into law. As Republicans try to roll back Obamacare and other Obama-era legislation, they have the opposite situation, a president who will viciously wield the veto pen to preserve his legacy. Barring a major break between the Democrats in Congress and President Obama, it is unlikely that any presidential vetoes will be overridden.

Flank attacks

Two strategies have been floated by Republicans to outflank the Democratic obstruction. Rep. Mo Brooks (R-Ala.) recently called on Republican leaders to invoke the “nuclear option” and totally eliminate the filibuster. In 2013, Senate Majority Leader Harry Reid (D-Nev.) changed the rules to eliminate the filibuster for the confirmation of presidential appointments. According to the Washington Post, the filibuster still stands for bills, but not for votes on presidential nominees.

Eliminating the filibuster would allow Republicans to pass the bill in the Senate, but the plan has two major flaws. First, the larger hurdle, President Obama’s veto, would remain so any successes would be short-lived. Second, the Republicans will one day need the filibuster themselves since it is unlikely that any Senate majority will ever be permanent.

A second strategy would be to use a budget reconciliation, the tool used by Harry Reid to pass Obamacare, to pass conservative legislation. As former New Hampshire senator Judd Gregg explained in the Wall St. Journal, a budget reconciliation requires only 51 votes but the circumstances where it can be used are extremely limited. Additionally, the final budget bill would still be subject to a presidential veto.

The Keystone model for success

Sheer numbers and constitutional processes make it unlikely that a direct frontal assault against President Obama will work. A more likely strategy is for the Republicans in Congress to seek areas where they can find common ground with moderate Democrats as they did with the Keystone pipeline. Winning even a few Democratic votes would force Obama to either use his veto or allow the bill to become law, putting pressure squarely on the president.

While it is possible – or even likely – that President Obama will veto a bipartisan bill, doing so would change the dynamic in Washington. Since Republicans took control of the House in 2011, the Democrats have derided them as obstructionists who do nothing more than say “no.” When President Obama uses his veto power or Senate Democrats use the filibuster, it will be the president who is obstructing the will of the people.

The Republicans made a massive strategic blunder in the battle over DHS funding when House Republicans chose not to focus solely on President Obama’s illegal amnesty, a tactic that might have won some Democratic allies. Instead, the Wall St. Journal notes that the bill included several amendments to repeal Mr. Obama’s less controversial moves on immigration going all the way back to 2011. As a result, the Democrats were united and a few Republicans even voted against the bill.

The last line of defense

Further, as Karl Rove notes, the decision of a Texas federal court judge blocking Obama’s amnesty removed the need to defund the DHS in the first place. The courts have at least temporarily stopped Obama’s executive action where Congress could not. The possibility remains that the injunction will be made permanent and the president will suffer an embarrassing legal defeat.

Although the courts have been weakened by the appointment of judicial activists to the bench, including four to the Supreme Court, the judicial power to declare Obama’s actions unconstitutional is the best hope. The potential threat to Obama’s agenda may be why a Rasmussen poll recently found that 43 percent of Democrats feel that Obama should be able to ignore the courts.

While the election has not given Republicans a carte blanche to impose their policies and reverse Obama’s, it has given them a far stronger hand than they previously held. Republicans must decide whether to squander this advantage on a pointless and unwinnable fight or whether to build a bipartisan majority that can actually accomplish the work of the people.

Read the full article on Examiner.com