When do we kill the 'fake filibuster'?

Betsy McCaughey, writing at the New York Post, suggests that "it's time to kill the 'fake filibuster,'" adding that doing so is not so much "going nuclear" as "going original."

McCaughey's "fake filibuster" refers to the fact that for most of our history, a filibuster brought Senate business to a halt, while current Senate rules allows other business to continue as the filibustered bill is put aside. 

A closer look at reforming the filibuster is provided by California Republican congressman Tom McClintock in a recent issue of Imprimis.

McClintock brings up two changes that resulted in today's Senate filibuster rules.  The first occurred in 1917, when a cloture rule allowed a two-thirds majority, at the time, to end debate, thus eliminating the ability of a small group of senators to continue a filibuster.

Even that rule change, however, didn't stop some filibusters, as described by American History Magazine:

The cloture rule provided a method for cutting off filibusters by a small group, but it was powerless against filibusters supported by more than a third of senators, which explains how Southern Democrats were able to use filibusters to kill every meaningful civil rights bill for the next 47 years.

The second rules change came about in 1970, when Democrat Senate majority leader Mike Mansfield set up a "two-track" system that let the Senate shelve a filibustered bill and move on, as McClintock recounts:

The filibuster thus entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote. Today the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business. The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution.

Whereas the filibuster prior to 1970 was designed to ensure debate, after adoption of the two-track system it mutated into a procedure that prevents debate. As a result, the greatest deliberative body in the world now has difficulty deliberating on anything of importance.

Hence McCaughey's "fake filibuster."

McClintock points out that between 1917 and 1970, there were 58 filibusters, while there have been 1,700 since 1970.

McClintock argues that the inability of the Senate to act, as the result of the filibuster, has created a legislative gridlock that has contributed to the "rise of the imperial executive."  

He further notes that the Constitution creates "extraordinary majorities" for such things as treaties and veto overrides but that current Senate rules replace majority rule for ordinary matters with "an artificial threshold of three-fifths," thereby allowing one body of Congress "to be paralyzed."

George Washington is said to have observed over tea with Thomas Jefferson, "We pour our legislation into the senatorial saucer to cool it."

In that spirit of allowing the minority to be heard in debate while at the same time "restoring the Senate's ability to legislate," Rep. McClintock suggests a number of steps to improve the process.

The McClintock measures include eliminating the two-track system of filibuster, restoring the requirement that the filibuster stop all other Senate business, and requiring that "debate ... be germane" to the legislation in question, as well as several other parliamentary measures. 

The McClintock piece considers Harry Reid's nuclear option of simply ignoring the rules a "shortcut to anarchy" and suggests instead that each two-year Senate session have the "constitutional authority" to adopt its own rules "by majority vote," regardless of past precedent.

Betsy McCaughey cuts to the chase on the filibuster rules, observing that all the Senate minority has to do now is threaten to "hold up a bill" or, as Senate Minority Leader Chuck Schumer is doing, threaten to hold up a Supreme Court vote:

But DC insiders talk about the 60-vote rule as if it were sacrosanct, the holy grail of democracy.

Sorry. That's not the case.

McCaughey cites the framers and The Federalist:

The framers designated five circumstances requiring a supermajority: convicting an impeached president or other high officer, amending the Constitution, ratifying a treaty, overturning a presidential veto or expelling a member of Congress. That's the whole list, and passing laws and confirming nominees aren't on it.

At the Constitutional Convention, the framers considered requiring a supermajority in the Senate to pass laws, but repeatedly rejected the idea.

James Madison explained in Federalist No. 58 that it would give the minority control over the majority. The "principle of free government would be reversed." Requiring laws to pass two houses of Congress and giving the president a veto were better ways to promote wise lawmaking.

Consider that in the 86 years, or 43 Senate sessions, from the 1933 Roosevelt era through the current session, Republicans have held unified government ­– the House, the Senate, and the presidency – for exactly four sessions.

Consider further that the Democrats have used their 17 sessions of unified government, along with much of the remaining 22 sessions of divided government, to legislate the progressive agenda.

And consider that if Hillary Clinton had been elected president with a two-seat Senate majority, the Senate Democrats would very likely have gone full nuclear filibuster at the slightest hint of Republican objection to legislation or Supreme Court nominees, probably with the full support of their media brethren.

And consider, finally, Betsey McCaughey's observation on filibuster rules:

They protect career politicians more than the public: The 60-vote threshold dashes voters' hopes that an election can produce real change.

If the Senate is to "rise to this occasion," as McClintock puts it, of President Trump's historic victory and unified Republican government, the Senate must reform the filibuster rules, and, as McCaughey puts it, kill the fake filibuster.

McClintock quotes from Shakespeare:

There is a tide in the affairs of men, which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat, and we must take the current when it serves or lose our ventures.

Otherwise said as "strike while the iron is hot."