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Key Republican Senators Come Out Against Elimination Of The Filibuster

Filibuster

With Republicans set to return to Washington in January with full control of both the Legislative and Executive Branches for the first time since losing control of Congress in the 2006 Mid-Term elections, many observers are preparing for battles in the Senate between Republicans and Democrats as the GOP attempts to push through an agenda that seems likely to include everything from an attempt to “repeal and replace” the Affordable Care Act and tax reform to a likely Supreme Court nomination that should come shortly after January 20th if not at some point before then. While the GOP majority in the Senate, likely to end up at 52 -48 after the runoff for Louisiana’s Senate seat on December 10th, is smaller than it was prior to the election, it is still solid enough to expect that Republicans will be able to get most of their proposals through the Senate and to the new President relatively easily. The one stumbling block, of course, would be the filibuster and the need for sixty votes to proceed forward with legislation and Supreme Court nominations. Many observers have assumed that the GOP would quickly get rid of the filibuster, at least for Supreme Court nominations, if Democrats attempted to use it in the manner that Republicans became so adept at from the time President Obama took office until they regained control of the Senate two years ago, One senior Republican, though, is warning against, the idea of eliminating the filibuster, a possible indication that we may not see the end of the filibuster any time soon:

WASHINGTON — Republicans hankering to end the filibuster so they can enact President-elect Donald Trump’s agenda without interference from Senate Democrats can pretty much forget it.

To change the rules and end the minority party’s rights to blockade legislation and Supreme Court nominees requires either agreement at the start of a new Congress(which Democrats would oppose) or a series of procedural votes. The latter, known as the “nuclear option,” could rewrite the rules with just 51 votes.

Democrats did that for two years for presidential nominations below the level of the Supreme Court to move some of President Barack Obama’s many stalled nominees.

Now some Republicans, especially in the House, are pushing for Republicans in the upper chamber to nuke the rest of the filibuster, clearing the way for a Trump agenda.

But with the GOP holding just a 52-seat majority next year, it would take only two defections to end that threat, and some Senate Republicans already have expressed strong reservations about the idea.

On Wednesday, Sen. Orrin Hatch (R-Utah) may have put a dagger in the scheme.

Asked by The Huffington Post about ending the filibuster, he was blunt.

“Are you kidding?” he said with some vehemence. “I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.”

Hatch, the most senior member of the GOP, presides over the Senate every morning as the president pro tempore, making him third in the line of succession to the White House. He’s also chairman of the Senate Finance Committee.

In addition to Hatch, South Carolina Senator Lindsey Graham is also vowing to oppose any effort to eliminate the filibuster:

With Republicans in control of the House, the Senate and, come January, the White House, calls have come from some quarters of the Republican Party to eliminate the filibuster and ram through an unadulterated Trumpian agenda.

Sen. Lindsey Graham (R-S.C.) on Tuesday thoroughly rejected that approach. “That’s a horrible, terrible idea,” he said after an off-camera briefing with reporters in the Capitol.

Asked if he’d vote against the effort if it came to the Senate floor, he said he would “in a heartbeat.”

Senate Majority Leader Mitch McConnell (R-Ky.) has so far shown no indication he plans to pursue what’s known as the nuclear option. But if he did, just three Republican “no” votes would stop the measure from passing. Republicans hold 51 seats, and will have 52 if they win an upcoming election in Louisiana as expected. Graham would not have great difficulty finding a handful of allies in opposing the elimination of the filibuster.

On a political level, McConnell may actually benefit from the filibuster being in place. First, it could serve to check Donald Trump’s power, which has the counter-effect of increasing McConnell’s. And second, Democrats who filibuster Trump’s agenda can then be attacked in 2018 midterms. When the Trump faithful demand to know why, say, Obamacare has yet to be repealed, McConnell will be ready with an answer: obstructionist Democrats.

Graham was a strident opponent of Trump during the campaign, but said he has hope Trump will succeed and he stands ready to work with him on areas where there is mutual agreement.

Requiring Trump to work with Democrats, Graham added, gives him the chance to make the kinds of deals he wants to make. “There are deals to be made in this body ― big, huge deals,” he said.

“I don’t think he’s an ideologue,” Graham went on. “He lives in a world where the other side has to get something. So in that regard, he has a unique position here. He’s not beholden to any one element. He’s truly an outsider and if he will bring us all together and bring us around a table, some of this stuff will fall into place pretty quickly. To those Democrats who are going to hit him at every turn, you do so at your own peril.”

Admittedly, Hatch and Graham are somewhat unrepresentative of the Senate GOP Caucus as a whole at this point. While both of them may have entered office being among the more conservative members of the upper chamber at the time, Republicans who have come to the Senate in the years since they arrived. Nonetheless, their opposition to filibuster repeal is significant because it likely dooms the entire idea for at least the time being. Thanks to Harry Reid’s November 2013 precedent, Republicans would need at least 50 votes (plus the tie-breaking vote of Vice-President-Elect Mike Pence) to rewrite the Senate rules to eliminate the filibuster in whole or in part. This means that it would only take a handful of Republican Senators to defect from whatever reform plan was being proposed for it to fail to pass. With Hatch and Graham both opposed to the idea, in fact, it would mean that there would only need to be one other Republican to oppose reform and the proposal would fail. That third vote could come from any number of Republicans but is most likely to come from one of the longer-serving members, which would include people such as John McCain, Lisa Murkowski, Susan Collins, John Cornyn, Thad Cochran, and Mike Enzi. Additionally, it’s worth noting that Senate Majority Leader Mitch McConnell, who was easily re-elected to his position earlier this week by the incoming caucus, has not stated one way or the other where he stands on the issue of filibuster reform and that his opposition to the idea would not only doom any such proposal by depriving it of a majority but would guarantee that the issue never even makes it to the Senate floor.

These developments put House and Senate Republicans who may be hoping for the elimination of the filibuster in a position similar to that of many Democrats during the early years of the Obama Administration when Republicans were being most effective in blocking legislation and nominations by utilizing cloture votes to prevent final votes or even debate on Administration proposals. When some Senate Democrats first tried to reform the filibuster in 2010, several veteran Democrats made it clear that they would oppose the proposed reforms, arguing among other things that the party would regret eliminating or weakening the power that the filibuster gave to a Senate minority when the inevitable time came that they were in the minority themselves. The same thing happened in 2012 when younger Democratic Senators once again attempted to push efforts to reform the filibuster in the wake of President Obama’s re-election victory. It was only after months of Republican refusal to let virtually any nominee by President Obama proceed to a vote that then Senate Majority Leader Harry Reid was able to gain enough support in his cough for the filibuster rule reform that was adopted in November 2013, and it was widely believed at the time that the fact that the change only applied to votes for Executive Branch appointees and Judicial nominations below the Supreme Court level was a reflection of the fact that he needed to limit how far the reforms went in order to hold his own caucus together. For now at least, it appears that Republicans seeking to limit the power of Democrats to assert influence in the legislative process via the filibuster are going to find insufficient support for their desire to eliminate the filibuster. Whether or not that continues will depend on a number of factors that could take years to play out.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    They’re not all dumb. Two years under Trump might mean they’ll need to reach for a tool they be fools to burn today. Don’t torch bridges you may need to retreat over…..

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  2. CSK says:

    On the other hand, keeping the filibuster might entail listening to Ted Cruz read Dr. Seuss again.

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  3. Pch101 says:

    Requiring Trump to work with Democrats, Graham added, gives him the chance to make the kinds of deals he wants to make. “There are deals to be made in this body ― big, huge deals,” he said.

    And there you have it. The GOP Senate leadership will want to use the Senate Democrats as a leverage point against Trump when there are mutual interests on the line. I’m just surprised to hear Graham being so blunt about it.

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  4. Kylopod says:

    @CSK:

    On the other hand, keeping the filibuster might entail listening to Ted Cruz read Dr. Seuss again.

    Despite some reports to the contrary, that wasn’t a filibuster. Eliminating the filibuster won’t stop senators from doing long, rambling, bizarre speeches on the Senate floor that don’t actually block passage of a bill.

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  5. @Kylopod:

    If they didn’t give ” long, rambling, bizarre speeches” Senators would have nothing to do!

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  6. JKB says:

    Requiring Trump to work with Democrats, Graham added, gives him the chance to make the kinds of deals he wants to make. “There are deals to be made in this body ― big, huge deals,” he said.
    “I don’t think he’s an ideologue,” Graham went on. “He lives in a world where the other side has to get something. So in that regard, he has a unique position here. He’s not beholden to any one element. He’s truly an outsider and if he will bring us all together and bring us around a table, some of this stuff will fall into place pretty quickly. To those Democrats who are going to hit him at every turn, you do so at your own peril.”

    And in that is the real improvement. If Trump can do the deals, he will not only accomplish things, he will put the last nail in Obama’s failed legacy. The ideologue Obama tried to rule by fiat and never negotiated in good faith. His executive orders will be rescinded and if Trump is successful in legislating, Obama’s failure at such will stick out like a sore thumb.

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  7. Kylopod says:

    @Doug Mataconis:

    If they didn’t give ” long, rambling, bizarre speeches” Senators would have nothing to do!

    I remember reading that Robert Byrd once gave an entire speech on the floor of the Senate decrying the use of the phrase “y’ know.”

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  8. The filibuster serves the majority. It saves them from having to actually vote on difficult and unpopular issues.

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  9. Jc says:

    Even with someone as crazy as Trump, I don’t see Democrats abusing the filibuster in the manner the GOP did with Obama. I could be wrong, but would be surprised if they did.

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  10. Hal_10000 says:

    @Andre Kenji de Sousa:

    That’s the dirty secret of the filibuster. They like keeping it around because it allows the parties to say, “We would have passed this incredibly stupid piece of legislation if only the other party didn’t filibuster!”

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  11. MBunge says:

    This could be interesting. If Senate Dems are actually interested in getting things done, Trump is probably better to have in the White House when it comes to getting House Republicans on board. On the other hand, if Democrats are going to continue the tradition of basically using the filibuster to screw with the other party, it’s easy to see Trump make a big, big stink over that in ways that neither Bush the Younger nor Obama ever did.

    I mean, it became routine the last 16 years for filibusters to be used even when your party owned the White House and Bush or Obama could just veto stuff. That’s ridiculous.

    Mike

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  12. Gustopher says:

    @Jc: The Republicans, under McConnell’s leadership, set a new standard for the Senate — everything must first pass a filibuster. I don’t see it as misusing the filibuster to use it in the current, standard manner.

    Also, raising the debt ceiling becomes a spot for policy negotiation, unless the Republicans have the votes to raise it on their own.

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  13. Rick Zhang says:

    @Pch101:

    It’s perfect, isn’t it? It’s the only excuse the Republicans have of not taking ownership for the mess they’ll create in 4 years. Even though they control all branches of government, they can still say democrats are obstructing using the filibuster as a way of revving up their uneducated and easily swayed voters.

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  14. C. Clavin says:

    @JKB:

    Obama tried to rule by fiat and never negotiated in good faith

    You really have to stop reading those fiction websites you haunt. Not a single opinion of yours comports with reality. Yet you hold onto them like a drowning child.

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  15. C. Clavin says:

    The minute that Republicans cannot take insurance away from 21 million people, or give tax cuts to the rich…the filibuster is adios.
    And to quote Orin Hatch on anything is just hilarious. He’s the most two-faced piece of crap in a building full of two-faced pieces of crap.
    Hatch first won election in 1976 by saying his opponent, incumbent Frank Moss, had been in office too long, at 18 years.
    Hatch has now held office for 40 years.
    Sure…I’d take anything he says for fact.
    Just another Republican hypocrite and liar.

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  16. MBunge says:

    @Rick Zhang: Even though they control all branches of government, they can still say democrats are obstructing using the filibuster as a way of revving up their uneducated and easily swayed voters.

    If Democrats are going to use the filibuster to insist that essentially everything needs 60 votes to pass, as Republicans have done, that will be obstructionist and it would be a perfectly legitimate issue to take to the voters. It would also be perfectly legitimate for Democrats to point out Republicans are stinking hypocrites on the matter.

    And if there’s ever a time to stop denigrating the other side, it’s after they kicked your ass by picking Donald Trump to beat your candidate.

    Mike

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  17. Pch101 says:

    @Rick Zhang:

    It’s that, and a foil against both Trump and an overzealous House.

    We’re about to see what the power struggle looks like. The old line Republicans seem to be preparing for a battle with Trump; they will want to assert their authority and ensure that they maintain their clout. We’ll see whether they keep it up or roll over like dogs.

    I am expecting Trump to operate with a bunker mentality. He won’t trust most of the Congress, and will fight right back in the belief that he can overpower them when he wants to. Whether he is any good at it or his bite ends up being all bark may be another matter.

    If Trump makes a genuine effort to pull out of NAFTA, that will spark a constitutional question that could create the basis for a showdown. Good times.

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  18. Senyordave says:

    @Pch101: He won’t pull out of NAFTA, in 6 months the issue will be gone completely, and in one year I wouldn’t be shocked if he praised it.

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  19. Pch101 says:

    @Senyordave:

    I’m actually inclined to agree that nothing is happening with NAFTA. But he may stir up some drama over it in order to throw a bone to his base.

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  20. grumpy realist says:

    OT, but for those who want a feel-good story, read this.

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  21. Sleeping Dog says:

    Rethugs are all Trumpian today with the nagging fear that he’ll undercut them as Trump is not really a Republican ideologue and will cut deals with the Dems.

    Particularly if the there is no filibuster, McConnel will need a unified conference to pass the controversial legislation like repealing Obamacare and Ryan’s wet dream of privatizing Medicare. Its pretty easy to identify a half dozen and maybe 10 Rethug Senators that would vote against that type of change. Remember that GW Bush’s attempt to privatize Soc Sec, never made it out of committee.

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  22. Just 'nutha ig'rant cracker says:

    @MBunge: I see your point, but I’m not sure that Democrats in the Senate are amenable to aiding and abetting any of the goals of Senate Republicans. Moreover, I’m not sure that they should be. Personally, I would prefer that whatever happens be strictly on the shoulders of the GOP. I know that the base will not find fault with whatever the do, but the base won’t win elections for them. If it turns out that the base will win for them, then the game, such as it is, is over and JKB and the von Mies Institute get to turn the place into Weimar Germany 2.0 and I’ll wish that I had been able to get a visa for NZ with Reynolds.

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  23. WarrenPeese says:

    Those “key Republicans” are smarter than Douchebag Reid, who blew up the filibuster on executive and judicial nominees, and the Dems will now pay the price for giving away power to Trump.

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  24. Rick Zhang says:

    @MBunge:

    Of course, the smart thing for the dem caucus to do is to not employ the filibuster at all, and to let everything pass on a straight party line vote. Force the Republican senators to be on the record as having eliminated Medicare, etc. Let the people feel the pain of their choice, and let there be no excuse.

    I favour operating on the martyr system. Every so often, as a country we need to experience the pain of war, suffering, recession, etc. so that we do not become too exuberant and complacent. One of Bush’s mistakes was that he hid the war budget off the books as supplemental requests, and did not raise taxes to balance the cost of war, thus sheltering much of the US population from the real costs.

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  25. HarvardLaw92 says:

    @Rick Zhang:

    Of course, the smart thing for the dem caucus to do is to not employ the filibuster at all, and to let everything pass on a straight party line vote

    Bingo …

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  26. SC_Birdflyte says:

    @Doug Mataconis: Personally, I’d favor keeping the filibuster if and only if certain other changes could be made: Filibusters require that the Senate be kept in session around the clock until said filibuster concludes; Multiple cloture votes may be taken, starting at 60 votes, and declining with each successive vote until a simple majority shuts off debate. That should provide adequate protection of minority rights while not shutting down the Senate altogether.

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  27. SKI says:

    @Rick Zhang:

    Of course, the smart thing for the dem caucus to do is to not employ the filibuster at all, and to let everything pass on a straight party line vote. Force the Republican senators to be on the record as having eliminated Medicare, etc. Let the people feel the pain of their choice, and let there be no excuse.

    Only if they are sociopaths and can ignore the reality that millions of people will be gravely harmed.

    It is a nice Machiavellian approach but requires that allowing suffering that could have been avoided is acceptable to you. Time and again, the Dems have proven that it isn’t to them as a party. I’m ok with that. Yes, it makes them “weaker” in purely political power terms when arguing over harder to relate to (or easier to demagogue) issues like the Debt Ceiling but like the mothers in the Judgment of Solomon, it becomes stark who actually cares in simpler issues – like eliminating Medicare or Social Security or throwing millions of people off insurance rolls.

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  28. C. Clavin says:

    Breaking…Trump has selected the biggest racist in Congress to be the AG.
    Dark times we are in….
    http://www.bloomberg.com/politics/articles/2016-11-18/trump-said-to-pick-senator-jeff-sessions-for-attorney-general

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  29. SKI says:

    @C. Clavin: It will be interesting to see if he is confirmed and how ugly the hearing gets. Remember that a GOP-controlled Senate has rejected him in the past for his racist views/comments. I’m expecting that he will ultimately be confirmed but he isn’t getting through unscathed.

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  30. Rick Zhang says:

    @SKI:

    See my previous comment about the stupidity of the masses. They genuinely need to feel pain and have that pain be clearly directed to a trigger. Why do you think Paul Ryan was so eager to can Obamacare when he knew it would be vetoed? Now that his party has full control of Congress and the White House, he demurs when he has the repeal legislation ready. He’s a smart pol who knows that his policies will be harmful for a lot of people, and he’s biding time and trying to find a way for dems to either own part of it or for the blame to be deflected onto them.

    One quote about democracy is that the people deserve to get what they vote for, hard and fast. Otherwise how else will they learn which party has their economic interests in mind?

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  31. An Interested Party says:

    One quote about democracy is that the people deserve to get what they vote for, hard and fast. Otherwise how else will they learn which party has their economic interests in mind?

    Sadly, certain people seem to care far more about cultural/racial issues than they do about their economic interests, hence why they vote for politicians who slit those same people’s fiscal throats…

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