Back in the summer of 2013, when Senate Majority Leader Harry Reid (D-NV) was threatening to nuke the filibuster for nominations, Senate Minority Leader Mitch McConnell (R-KY) made a threat of his own.
“There not a doubt in my mind that if the majority breaks the rules of the Senate to change the rules of the Senate with regard to nominations, the next majority will do it for everything,” McConnell said on the Senate floor on June 18, 2013. “I wouldn’t be able to argue, a year and a half from now if I were the majority leader, to my colleagues that we shouldn’t enact our legislative agenda with a simple 51 votes, having seen what the previous majority just did. I mean there would be no rational basis for that.”
Reid went for the “nuclear option” later that year, enlisting 51 other Democrats to eliminate the 60-vote threshold for all executive branch and judicial nominations except the Supreme Court.
Now McConnell is poised to become majority leader in January.
But will he make good on his threat? Republicans have not indicated what they’ll do yet, but it will be an important question facing the new majority.
Eliminating the 60-vote threshold for legislation would have some upsides for McConnell, but it’s not clear the benefits would be compelling enough for him to take the extraordinary step of turning the Senate into a simple-majority body like the House, at least while President Barack Obama holds the veto pen.
If Senate Democratic-led filibusters prove to be the main obstacle for the new Republican Congress to pass legislation, McConnell would see an incentive to go nuclear. In rare cases, it could ease passage of bills that Obama will actually sign, such as trade agreements, where Obama aligns closer to the GOP than his own party. In other cases, the prospect of landing far-reaching bills on Obama’s desk could make for valuable messaging ahead of the 2016 presidential and Senate elections, where McConnell will face headwinds in defending his majority.
It sets up a clear GOP argument for voters: “We keeps passing bills to fix America’s problems, and Obama keeps vetoing them, so we need you to elect a Republican president.”
United States President Barack Obama, center, U.S. Senate Republican Leader Mitch McConnell (Republican of Kentucky), right, and U.S. Senate Majority Leader Harry Reid (Democrat of Nevada) [Andrew Harrer/AP Images]
Two top Republican senators said this week they oppose further weakening the filibuster.
“I was greatly opposed to what Senator Reid and the Democratic majority did on November 21st. And I don’t think you respond to bad behavior with more bad behavior,” Sen. Lamar Alexander (R-TN), a close ally of McConnell’s, told TPM. “So we’re going to have a careful discussion about that.”
Sen. Orrin Hatch (R-UT), the incoming chair of the powerful Finance Committee, wants to keep the Democrats’ new rule, but he said he’s against scrapping the 60-vote threshold for legislation. “They changed the rule, and frankly, I can live with the change. But I’d be against any kind of a change to [the rules for nominations to] the Supreme Court now or to any kind of legislation,” Hatch told TPM.
Other Republicans including Sens. Johnny Isakson (R-GA) and Richard Burr (R-NC) said the conference would discuss the filibuster but hadn’t made any decisions.
It is unlikely that Republicans will restore the original rule. More than two-dozen prominent conservative advocates signed a memo urging the GOP not to restore judicial filibusters, arguing that it “would constitute unilateral disarmament.” For the next two years at least, the existing rule will serve little purpose other than to prevent Democratic filibusters of judicial and executive nominees, which are unlikely to occur when Obama is the one selecting them.
“[W]e strongly oppose efforts to revive the judicial filibuster,” wrote the advocates, including leaders of Judicial Action Group, the National Right to Life Committee and Americans for Limited Government.
Republican Senator of Utah Orrin Hatch (AP Photo/J. Scott Applewhite)
Don’t expect any immediate action in January when the new Republican majority takes control. His expected 54-member conference includes a faction of new senators who haven’t yet taken office and will have a say in the matter. McConnell’s office downplayed expectations that the incoming majority leader will scrap the filibuster.
“He hasn’t said that he supports that or that he’s pushing for it. He’s said that he expects that if someone calls for it (and thus far, no one is), it would be hard to argue a precedent hasn’t been set,” a McConnell spokesman said, when asked about the senator’s comments last year. “Not even Dems are calling for ending the filibuster for legislation. Even the ones that called for it in the past certainly won’t when Republicans are in control.”
Reid’s bold new precedent to weaken the minority party’s power with 51 votes (bypassing the regular two-thirds requirement for a rule change) makes a future majority likely to weaken the stalling tactic further, as even proponents of the filibuster admit. The question is whether it’ll be McConnell’s majority in the 114th Congress, or perhaps a future majority that controls the White House as well as both chambers of Congress and advances an agenda — or a Supreme Court nominee — stymied by the filibuster.
“We shouldn’t return to the old rule. We should teach these blunderheads that they made a big mistake. And we have the votes to stop bad judges if we want to,” Hatch told conservative legal scholars at a Federalist Society meeting after the 2014 election. “And frankly I intend to win with our candidate the presidency in 2016 and we will give them a taste of their own medicine.”
One retiring Democratic senator wants McConnell to nuke the filibuster.
“I love the Senate. I love this place,” Iowa Sen. Tom Harkin told reporters. “There’s only one hope I have for the Senate in the future: get rid of the filibuster. … Get rid of the filibuster, but guarantee the minority the right to offer germane amendments to bills that are on the floor.”