The Filibuster in the Era of Trump

The filibuster may seem a weapon of obstruction in the hands of Senator Schumer, but the Minority Leader may find himself in a trap of his own making when he uses it. During the Obama years, Republicans campaigned on the promise that "If we control the Senate and the House, we will pass conservative laws to rein in a lawless Obama administration." But after each election Senate Majority Leader McConnell said that that it was almost impossible to get anything done because the Democrats blocked every meaningful action in the Senate. Does that really mean that we have to elect the very rare filibuster-proof majority to slay the governmental leviathan that has been built over the last century?

Even now, with Republicans controlling both houses of Congress and Donald Trump moving into the White House, they throw out this same excuse: "You can't pass anything in the Senate without sixty votes." Are our political leaders lying? Were their pleas simply a way to convince us that we should vote for them, even though we may find them doing nothing again? Put another way, "Is the fix in, and we are permanent patsies?"

When Senator Scott Brown was elected in 2010, he was thought to be the final filibusterer to prevent ObamaCare from being voted on in the Senate. It was the classic position of the minority: Let's prevent the majority from running roughshod over "the will of the people." But the Democrats got around the filibuster and the rest is history. And it seems that the new Republican Congress will use basically the same tactic to eliminate ObamaCare. But what about other legislation?

With slightly different details, the filibuster has existed for centuries in various legislative bodies. It wasn't until 1917 that Senate rules for ending debate were even adopted. Because the required supermajority was large, cloture almost always required votes from both parties. This seems generally sane. If an action is sufficiently objectionable that none of the minority can be persuaded to join in it, then perhaps it is not sufficiently salutary to be adopted. Then a hyperpolarized Democratic Party intervened.

In 2010, Republicans took the House, but Senate Majority Leader Harry Reid refused to allow votes on many bills the House passed, blocking most Republican initiatives. This changed in 2014, when Republicans captured the Senate. The promise was that bills passed by the House could also be passed in the Senate, sending them to the President. Only a Presidential veto would block Republican goals. Again, Minority Leader Reid intervened.

At almost every turn, Harry Reid declared that the Democrats would filibuster Republican proposals. There wouldn't be a vote against the Iran nuclear deal. Planned Parenthood would get its money. Keystone Pipeline wouldn't be voted on so President Obama wouldn't have to veto it. We could go on and on. "The World's Greatest Deliberative Body" ceased to deliberate. And we didn't hear a word of it in the mainstream media. Instead, we were told that the Republicans were "obstructionists."

The trick that allowed these "filibusters" to succeed "behind the curtain" was created by Senators Mike Mansfield and Robert Bird after filibusters of civil rights legislation in the early 1960s. In essence, when the Minority Leader tells the Majority Leader that a filibuster is intended, the Majority Leader places the "filibustered" action on a second calendar where it never sees the light of day. Under this custom, Majority Leader Mitch McConnell has allowed the Senate to be "filibustered," blocking action on bills the Democrats don't like, simply allowing Democrats to have their way.

In theory, this two-calendar "filibuster" is designed to allow the Senate to operative efficiently to tackle the supposed "immense legislative load" it faces. But the proper term for this is "pre-emptive surrender." Senator Mitch McConnell has declared that he will not fight. But he does not need to fight. All he needs to do is to require the Democrats to fight.

Consider this spectacle: Republicans propose an appropriations bill that does not include a tax increase the Democrats want. Senator Schumer declares a filibuster. But instead of going back to the drawing board to come up with something the Democrats will like, Senator McConnell simply hands the microphone to Senator Schumer and says, "Enjoy yourself." Now, instead of the Republicans looking bad, it has become time for the Democrats to put up or shut up.

While the Democrats are busy trying to talk an important bill to death, Republicans are happily explaining to the TV cameras that it's all about Democrats trying to raise taxes on hard-working Americans while the Republicans refuse to go along with robbing the taxpayer one more time.  Even President Trump’s Twitter account can join in the fun. The Democrats are wearing the obstructionist hat while the Republicans are trying to do something for the American people. As Justice Brandeis said, "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

Multiply this by hundreds of Democrat pork-barrel projects. All of a sudden the cameras catch a view of Democrats shutting down the government while demanding money to study the effect of marijuana on sexual arousal in rats or digitize the New York Historical Society's photo collection or remove tattoos in California. These and thousands of other projects have no proper place in the Federal Government. After the first six-dozen stories of how the Democrats are preventing the Senate from doing its proper business in order to promote bad ideas, Senator Schumer may start to back down. But until then, there are no consequences for his actions.

The current mainstream media meme is that the Republican Party is the "Party of No." If Mitch McConnell would simply hand the microphone to Chuck Schumer, America would see that the Democrats are the "Party of Nothing but Massive Government." And that would completely change the political dynamics.