There’s a great amount of shock and awe in the halls of Congress that President Donald Trump has become a great champion of completing the nuclear transformation of the Senate and letting a simple majority pass legislation.
The chamber’s top Republican, Majority Leader Mitch McConnell, has promised up and down he won’t do it — and plenty of other Republicans have said they wouldn’t support him if he did.
Orrin Hatch, the longtime Utah Republican and paragon of Senate decorum, said ending the filibuster would lead to socialism. Imagine that!
It’d take a united Republican front to change the rules, and with so many Republicans opposed, the rules won’t change anytime soon.
But Trump has said three times now — twice in interviews and then once on Twitter — that Senate rules should probably changed. He’s griping that he can’t get a spending bill he likes passed through Congress. Democrats claimed victory for standing united and disrupting his agenda, ergo the majority should rule in Congress, he’s saying.
Before getting on with this story, let’s pause and not let the irony of a President who lost the popular vote but won the White House because of the way the Constitution favors rural states with the Electoral College go unmentioned.
The “nuclear option” — changing Senate procedure with a simple majority to limit the rights of the minority to block things — was triggered years ago and ever since we’ve been watching the slow but inevitable implosion of the Senate rules Trump says are “archaic.”
It’s not Republicans’ fault, either. At least it isn’t ONLY their fault.
It was a Democratic Majority Leader, Robert Byrd, who hatched the idea of changing Senate procedure to override the “cloture” rule.
It was a Republican Majority Leader, Trent Lott, who, according to lore, coined the term “nuclear option,” when Republicans considered using a simple majority to change Senate rules and end Democrats’ filibuster of judicial nominations during the Bush administration.
It was a Democratic Majority Leader, Harry Reid, who actually went through with it, convincing his caucus to change the rules to break Republican filibuster of President Obama’s judicial nominees. In a carefully crafted compromise, they kept the filibuster rule on the books for Supreme Court nominations and legislation.
It was a Republican Majority Leader, McConnell, who encountered the next Supreme Court nominations. McConnell sat on President Barack Obama’s nominee, Merrick Garland, for more than a year. Then, he went nuclear and changed the Senate procedure to get Trump’s, Neil Gorsuch, seated on the bench.
All that’s left is the right to filibuster legislation. That’s a huge power — the filibuster — Democrats have to block Trump’s agenda. And in order to strip it away, Republicans would have to vote together for majority rule.
For now, they lack the will or the numbers to change the Senate in that way.
But let’s pause again here to note that Republicans have had trouble enough passing a simple-majority health care bill in the House, where they have a majority, so Democrats are far from Trump and congressional Republicans’ only problem.
And let’s add to that dysfunction the fact that in the Senate it requires 60 votes to enact major legislation. Republicans simply don’t have the numbers to get much done on Capitol Hill without help from Democrats, who don’t seem likely to give it. That’s a recipe for the same kind of legislative logjam that has prevented Congress from passing any sort of major legislation since early in the Obama administration.
Now take a longer view of Senate history — you can get the CliffsNotes version from the Senate website — or dive into any number of books or scholarly papers on the issue and the epic filibusters around the Treaty of Versailles or the Civil Rights Act. Here’s the Congressional Research Service version.
The last 100 or so years have been one long erosion of the rights of the minority in the Senate.
Used to be, the minority party could block any old vote it wanted to. They toyed with the idea of changing Senate rules way back in 1840. Back then, people didn’t even vote for senators, by the way. They were picked by state legislatures until 1913. As the Constitution intended it.
That was changed by the 17th Amendment to fix a system rife with corruption. There’s nothing about the filibuster in the Constitution, by the way.
Anyway, in 1917, Senators changed the rules, adding “cloture” and enabling the majority to cut off debate with a two-thirds majority, or usually 67 senators.
68 years later, in 1975, fed up again, they made it easier for the majority to cut of debate with a three-fifths, or usually 60 senators.
Fed up again, Reid invoked the nuclear option for most nominees 38 years after that, in 2013, promising to keep the rules for Supreme Court nominees.
Fed up again, McConnell invoked the nuclear option for Supreme Court nominees four years later.
How long until some Majority Leader and the rest of his or her party gets fed up again?
