“U.S. Senators prepared for a potentially rancorous day Tuesday, even by recent standards of partisan rancor, as Democratic leaders threatened to change filibuster rules to stop Republicans from blocking White House nominees for Administration appointments.
“Several votes were scheduled to test whether Republicans will allow simple-majority confirmations of a handful of long-stalled nominations. Some Senators expressed hopes for a breakthrough early Tuesday after none was reached during a rare, three-hour private ‘caucus’ of nearly all Senators Monday night.”
Associated Press reporter Charles Babington was summarizing events during the summer of 2013 that had led to what looked then like a radical proposal.
“If neither side retreats, potential consequences would last for years. A rules change that Majority Leader Harry Reid (D, NV) proposes is limited. It would end the ability of 41 Senators to block action on White House nominations other than judges. The out-of-power party still could use filibusters to block legislation and judicial nominees. Some critics say Reid’s plan would prompt Republicans to retaliate by doing even more to reduce the minority party’s rights when they regain control of the Senate–as early as 2014 elections.”
The struggle four years ago led to the first major write-down of the Senate’s so-called “filibuster” customs–really a gross misnomer. The outcome allowed the Obama administration to confirm key appointments over objections of Senate Republicans. Those included Gina McCarthy to head the Environmental Protection Agency and Richard Cordray to head the Consumer Financial Protection Bureau.
As Prof. Sarah Binder recounted in Congressional testimony published by the Brookings Institution, the so-called “filibuster” was not a founding tradition of the U.S. Senate. It is an invention: a legacy of the infamous Aaron Burr, who assassinated Alexander Hamilton, first Secretary of the Treasury, in 1804.
The original, founding Senate members adopted Rule 8 in April, 1789, under which any debate could be curtailed by a motion for the previous question, requiring a majority vote of those present. Mr. Burr urged on the Senate a custom of unlimited debate in his March, 1805, farewell speech as Vice President. The Senate warmed to his unctuous sense of self-importance and removed Rule 8 the following year.
The term “filibuster” was a borrowing. In the middle of the nineteenth century, it meant a rogue military operation or piracy. There was no actual attempt at seizing the Senate floor for unlimited debate until March, 1841, over an issue of replacing the Senate printers.
For the following 76 years the filibuster, although rarely practiced, was an absolute barrier to Senate action. Then Senate Rule 22, the cloture rule, was adopted in 1917, most recently modified in 1975–reducing the vote count from 67 to 60. Although curbed by the 2013 changes, the supermajority threshold of cloture has left the Senate paralyzed on significant issues.
What goes around comes around. There is never an ideal opportunity for major change. If Republicans abolish or choke off Senate filibusters this year, events are likely to favor future Senate Democrats. Historical precedents suggest small chances for the cockroach President to win a second term. He is at least as much disliked as former Pres. Polk (1845-1849) became.
The 2020 elections may install a Democrat as President and return Democrats as the Senate majority. If that were to happen, the gridlock of 2011 through 2013 could return. It was only partly relieved by the change that former Sen. Reid sponsored. The original Rule 8 should be revived.
– Craig Bolon, Brookline, MA, March 31, 2017
Mary Clare Jalonick and Erica Werner, Associated Press, Democratic opposition to Trump court pick grows, Schumer warns Republicans, WTOP (Washington, DC), March 31, 2017
Charles Babington, Associated Press, As filibuster talks flag, Senate faces showdown, New York Times, July 16, 2013
Jonathan Weisman, The Senate’s long slide to gridlock, New York Times, November 25, 2012
Sarah Binder, The history of the filibuster, Brookings Institution, 2010
Craig Bolon, Circuses: cheaper than bread, Brookline Beacon, February 21, 2017