Why Possibly Changing The Filibuster Brings Threats Of Political 'Nuclear' War

 NPR

MARA LIASSON

Alyssa Pointer/Pool/AFP via Getty Images

To a growing number of Democrats, the filibuster is a giant barrier to the things they want to accomplish. At the funeral last year for congressman and civil rights hero John Lewis, former President Barack Obama listed some of them: ending partisan gerrymandering and making Election Day a national holiday, as well as statehood for Washington, D.C., and Puerto Rico.

"And if all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that's what we should do," Obama said, instantly resetting the debate over the Senate procedure that allows a minority party with 41 votes to stop most legislation.

Obama defined the debate over the filibuster as an existential question for the future of American democracy. Now that Democrats have control of the White House and Congress for the first time in a decade, with voting rights as a top priority, Obama's argument has become central for the party.

POLITICS

Biden Endorses Reforming The Senate Filibuster. Here's What That Means

POLITICS

With Stronger Democratic Support, D.C. Statehood Fight Returns To Capitol Hill

Even President Biden, a champion of Senate tradition who has resisted calls to scrap the filibuster, opened a path last week to someday backing its demise, and he endorsed the idea that it's a civil rights issue.

Now that the filibuster is the biggest obstacle to Biden's agenda, Senate Majority Leader Chuck Schumer, D-N.Y., is threatening the GOP: Compromise with us or we'll nuke the filibuster. Minority Leader Mitch McConnell, R-Ky., has a counter threat, that nuking the filibuster will bring a "nuclear winter" on the Senate floor.

"Nobody serving in this chamber can even begin — can even begin — to imagine what a completely scorched-earth Senate would look like," McConnell said.

He warned of a "100 car pileup" with constant quorum calls and senators required to be physically present in the Capitol day and night for the chamber to function. Then he gave Democrats a picture of what he says would happen when Republicans regain control of the majority: "We wouldn't just erase every liberal change that hurt the country. We'd strengthen America with all kinds of conservative policies with zero input from the other side."

That could mean a long list of payback: nationwide right to work laws, defunding Planned Parenthood and sanctuary cities, concealed-carry reciprocity in all 50 states.

"If there's one thing I've learned over the last 20 years, it's when Mitch McConnell makes a threat, Mitch McConnell follows through with a threat," said Josh Holmes, McConnell's former chief of staff.

But Democrats don't seem scared. A scorched-earth Senate would be hard for McConnell to maintain, they say, since Republicans would suffer too. Also, reversing popular legislation isn't easy, which Republicans learned when they had the majority and couldn't find 51 votes to get rid of the Affordable Care Act, or Obamacare, after nearly a decade of campaigning to repeal it.

Chip Somodevilla/Getty Images

This isn't the first time senators have considered changing the filibuster. It once took 67 votes to break the filibuster; that was reduced to 60. There was an exemption made for fiscal policy with the budget reconciliation process that was used to pass Obamacare, the 2017 GOP tax cut bill and President Biden's $1.9 trillion pandemic relief package.

In 2013, Democratic Majority Leader Harry Reid got rid of the filibuster for the Cabinet, other executive branch nominees and lower court judges. In 2017, after Republicans had taken hold of both houses of Congress and the White House, McConnell expanded that exemption to Supreme Court nominees.

That means it takes 60 votes to pass a law, but only 51 to give someone a lifetime of power to rule whether that law is constitutional.

"And lo and behold, within the next six years, not only did Republicans take advantage of it, they put three times as many judges on the courts than Democrats did in the same amount of time. They confirmed three Supreme Court justices," said Holmes. "What he was able to accomplish with judicial nominations over the last four years is like a conservative Mount Rushmore moment."

The history of the filibuster is inseparable from the struggle for equal rights. From the end of Reconstruction to 1964, the filibuster was used almost exclusively to block civil rights bills.

After that, its appeal spread far beyond the segregationist cause.

"Other senators had seen how effective it was as a legislative tool of obstruction against civil rights and decided to start experimenting with it on their own pet issues," said Democrat Adam Jentleson, who was chief of staff to Reid and the author of the book Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.

Since the civil rights era, the filibuster was made easier to use. Senators didn't have to stand on the floor and keep talking like Jimmy Stewart in Mr. Smith Goes To Washington. A simple phone call to the Senate cloakroom was all it took to start a filibuster. Since it became painless to use, more senators began using it.

"So that is why today we sort of consider it an accepted fact of life that everything that happens in the Senate needs to clear 60 votes," Jentleson said.

Jimmy Stewart's 1939 performance in Mr. Smith Goes To Washington 

Columbia/Kobal/Shutterstock

Democrats and Republicans alike learned to love the filibuster when they were in the Senate minority and loathe it when they were in the majority.

But so far opponents of the legislative filibuster don't have the 50 Democratic votes they need to end it, with West Virginia Sen. Joe Manchin, Arizona Sen. Kyrsten Sinema and others perhaps open to changes, but not to eliminating the filibuster altogether. To convince every Democratic senator to abandon the filibuster, it would have to be connected to a bill the public really wants to pass, according to Jentleson.

"When you ask the public about the filibuster in the abstract, it usually comes in about 50-50. But when you attach it to a popular issue, the polling shifts dramatically, and the public strongly favors reform," he said.

Democrats say they first need to wait and see whether Republicans use it to block popular pieces of Biden's agenda, maybe infrastructure, gun background checks, a minimum wage hike or a renewal of the Voting Rights Act.

"Attaching filibuster reform to a very popular policy is the way to go. The public has consistently shown that what they want is results. They want to see their lawmakers deliver popular policies that improve their lives. And they are not particularly concerned about what procedures lawmakers use to get that done," said Jentleson.

Then there's the question of President Biden. He has talked about the kind of reform Manchin wants to see, to return to the days when a senator would have to stand on the floor and talk for hours, to make it more "painful" to filibuster, as Manchin puts it.

While members of both parties agree that the filibuster in its current form probably won't last much longer, it's also not clear that the return of talking filibusters would break gridlock in the Senate. At his press conference on Thursday, Biden seemed to signal he could envision a drastic scenario that would push him toward abolishing the filibuster.

"If there's complete lockdown and chaos as a consequence of the filibuster, then we'll have to go beyond what I'm talking about," Biden said.

A reporter followed up after Biden said he agreed with Obama's definition of the filibuster as "a relic of Jim Crow." Why is that not enough cause to get rid of it?

Biden had to think for a moment.

"Successful electoral politics is the art of the possible," he responded.

While many Democrats see an opportunity to stop a minority party from blocking broadly popular legislation, Biden was making it clear he still hasn't given up on the cooperation and bipartisanship he promised to bring back to Washington, yet.

 

Captured Courts: The GOP’s Big Money Assault On Our Independent Judiciary,

 

HEATHER COX RICHARDSON

Today, I’m watching some stories that have immediate significance, but also indicate larger trends.

First, Senator Sheldon Whitehouse (D-RI) [above] has asked the Justice Department, now overseen by Attorney General Merrick Garland, to look into the unusual circumstances through which Brett Kavanaugh’s large debts disappeared before his nomination to the Supreme Court. While this question is important to understanding Kavanaugh’s position on our Supreme Court, it is more than that: it is part of a larger investigation into the role of big money in our justice system.

Last May, Whitehouse, along with Senator Debbie Stabenow (D-MI) and Senator Chuck Schumer (D-NY), released a report titled “Captured Courts: The GOP’s Big Money Assault On The Constitution, Our Independent Judiciary, And The Rule of Law.” It outlined how the “Conservative Legal Movement has rewritten federal law to favor the rich and powerful,” how the Federalist Society and special-interest money control our courts, and how the system benefits the big-money donors behind the Republicans.

On March 10, Whitehouse began hearings to investigate the role of big money in Supreme Court nominations and decisions. Aside from Chief Justice John Roberts, every Supreme Court justice named by a Republican president has ties to the Federalist Society, a group that advocates an originalist interpretation of the Constitution, which prohibits the use of the courts to regulate business or to defend civil rights.

So while it is the Kavanaugh story that is getting media attention, the longer story is about whether our courts have been bought.

Another story on my list is that Senate Minority Leader Mitch McConnell today warned Democrats in the Senate not to get rid of the filibuster to pass voting rights legislation. “Nobody serving in this chamber can even begin, can even begin, to imagine what a completely scorched-earth Senate would look like,” he said. But, in fact, they can, because it was McConnell himself who got rid of the filibuster to hammer through Trump’s Supreme Court nominees, and who pushed through Trump’s 2017 tax cuts, which benefited only the very wealthy, by using a technique that avoided the filibuster.

McConnell warned that, without the filibuster, he would defund Planned Parenthood, pass anti-abortion legislation, and create national concealed-carry gun laws. But all of these measures are quite unpopular in the nation, so it’s not clear that these are threats the Democrats want to avoid. It’s entirely possible that permitting the Republicans to push through those measures would hurt the Republicans, rather than the Democrats.

Democrats are talking about reforming the filibuster because they are keen on passing H.R. 1, the voting rights act that would defang the voter suppression measures Republicans are pushing in 43 states. If those measures become law, it will be hard for the Democrats ever again to win control of the government, no matter how popular they are. H.R. 1 will level the democratic playing field, so both parties compete fairly. But fair elections will disadvantage Republicans, who have come to rely on voter suppression to win.

Hence McConnell’s threats.

For his part—in a third story I’m watching-- Biden is reaching out to Republicans with an infrastructure package. Republicans were caught wrongfooted when they all voted against the enormously popular American Rescue Plan, and he is offering them an infrastructure bill at the same time Democrats have gotten rid of a ban on so-called “earmarks,” local spending funded in a federal package. Earmarks tend to increase bipartisanship by enabling lawmakers to go home to their constituents with something tangible in hand in exchange for their vote on a bill. Infrastructure spending is popular among voters in both parties, so this approach might break the united front of Republican lawmakers to oppose all Democratic policies.

 Finally, I am fascinated by the Democratic-led, bipartisan move among congressional leaders to repeal the 2002 authorization for the Iraq War. President Biden has called for a “more narrow and specific” authorization of military force (AUMF), and 83 Democratic lawmakers and 7 Republicans agree. Their dislike of the AUMF comes from its expansion under former president Trump, who used it to justify the assassination of Iranian general Qassem Soleimani—an official from a country with which we are not at war—saying that Soleimani was undermining efforts to stabilize Iraq’s government. This was an expansion of military action that legal analysts think might well have been illegal.

In the past, Congress had justified AUMFs with the idea that they could control the president by controlling the money behind military actions, but Trump commandeered money to build his wall by declaring a national security emergency, buying time to do what he wished by forcing Democrats to take him to court to stop him. This opened up concerns that the power of the purse was really no power at all if a president chose to undermine it.

The willingness to hand to the president the power to engage us in military action illustrates the dangerous growth of power in the executive branch. I will follow with interest whether Biden’s interest in returning us to the traditional forms of the Constitution extends to reducing the power of the president to assume Congress's role in taking us into war.

Can the Fairness Doctrine Be Re-instituted & the Filibuster Eliminated?

HEATHER COX RICHARDSON

The January 6 attack on the Capitol made Americans acutely aware of the danger that disinformation poses to our democracy. Evidence indicates that the people who stormed the Capitol were radicalized by online QAnon conspiracy theories and by Republicans who pushed the lie that the 2020 election had been stolen. In the face of this disinformation, many different voices are now talking about the 1987 lapse of the Fairness Doctrine, which required companies that held broadcast licenses to present issues honestly, giving equal time to opposing opinions. People are talking about how its principles might be restored even in an era when modern technology means that we no longer need broadcast licenses to share news.

On Tuesday, Shepard Smith, a reporter who worked at the Fox News Channel until 2019 and who now has a show at CNBC, explained to CNN’s Christiane Amanpour why he left his job at the FNC. " I don't know how some people sleep at night,” Smith said, “because I know there are a lot of people who have propagated the lies and have pushed them forward over and over again, who are smart enough and educated enough to know better. And I hope that at some point, those who have done us harm as a nation — and I might even add as a world — will look around and realize what they've done. But I'm not holding my breath."

Over the years, people fed up with the Fox News Channel have organized boycotts of businesses advertising on one show or another, but a big source of FNC’s income is not advertising, but rather cable fees. FNC is bundled with other channels, so many people who do not want it pay for it. Today on Twitter, lawyer Pam Keith noted that a simple regulatory change ending this sort of bundling would force FNC and similar channels to compete on a level playing field rather than being able to survive on fees from people who might not want to support them.

The other story from today with a long history behind it is that the Senate is currently unable to organize itself because Minority Leader Mitch McConnell (R-KY) is insisting that the Democrats commit to leaving the filibuster intact. The filibuster is peculiar to the Senate, and is a procedure designed to draw out the session to prevent a vote on a measure. It is an old system, but it is not exactly hallowed: it was a bit of a mistake.

The Constitution provides for the Senate to pass most measures by a simple majority. It also permits each house of Congress to write its own rules. According to historian Brian Bixby, the House discovered early on that it needed a procedure to stop debate and get on with a vote. The Senate, a much smaller body, did not.

In the 1830s, senators in the minority discovered they could prevent votes on issues they disliked simply by talking the issue to death. In 1917, when both President Woodrow Wilson and the American people turned against the filibuster after senators used it to stop Wilson from preparing for war, the Senate reluctantly adopted a procedure to end a filibuster using a process called “cloture,” but that process is slow and it takes a majority of three-fifths of all members. Today, that is 60 votes.

From 1917 to 1964, senators filibustered primarily to stop civil rights legislation. The process was grueling: a senator had to talk for hours, as South Carolina Senator Strom Thurmond did in 1957, when he spoke for 24 hours straight to stand against a civil rights act. But the need to speed up Senate business meant that in the 1960s and 1970s, senators settled on procedural filibusters that enabled an individual senator to kill a measure simply by declaring opposition, rather than through the old-fashioned system of all-night speeches. The Senate also declared some measures, such as budget resolutions, immune to filibusters. Effectively, this means that it takes 60 votes, rather than a simple majority, to get anything--other than absolutely imperative financial measures-- done.

In 2013, frustrated by the Republicans’ filibustering of President Obama’s judicial nominees and picks for a number of officials in the Executive Branch, then-Senate Majority Leader Harry Reid (D-NV) prohibited filibusters on certain Executive Branch and judicial nominees. In 2017, when Democrats tried to filibuster the nomination of Supreme Court Judge Neil Gorsuch, then-Majority Leader Mitch McConnell killed the filibuster for Supreme Court nominees, as well.

The filibuster remains in place for legislation.

The Democrats currently have no plans to try to kill the filibuster altogether—they do not have the votes, as Joe Manchin (D-WV) has openly opposed the idea and others are leery—but they want to keep the threat of killing it to prevent McConnell and the Republicans from abusing it and stopping all Democratic legislation.

This impasse means that senators are not organizing the Senate. New senators have not been added to existing committees, which leaves Republicans in the majority in key committees. This is slowing down Biden’s ability to get his nominees confirmed.

What’s at stake here is actually quite an interesting question. While the new Senate is split evenly—50 Democrats, 50 Republicans—the 50 Democrats in the Senate represent over 41.5 million more people than the 50 Republicans represent. The filibuster means that no legislation can pass Congress without the support of 10 Republicans. Essentially, then, the fight over the filibuster is a fight not just about the ability of the Democrats to get laws passed, but about whether McConnell and the Republicans, who represent a minority of the American people, can kill legislation endorsed by lawmakers who represent quite a large majority.

We are in an uncomfortable period in our history in which the mechanics of our democracy are functionally anti-democratic. The fight over the filibuster might seem dull, but it’s actually a pretty significant struggle as our lawmakers try to make the rules of our system fit our changing nation.

McConnell, Schumer fail to cut 50-50 power-sharing deal amid filibuster snag

THE HILL

Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Charles Schumer (D-N.Y.) failed to reach a deal on Tuesday on organizing a 50-50 Senate as a fight over the filibuster threatens to drag out the talks for days. 

The two Senate leaders met to discuss how to share power in an evenly split Senate. According to Schumer, they talked about "a whole lot of issues" but didn't reach an agreement. 

The talks have snagged over a fight on the 60-vote legislative filibuster, which could drag out the negotiations for several days. 

McConnell is pressing to use the power-sharing agreement to help protect the filibuster amid calls from progressives to nix the hurdle in order to help pass Democratic legislative priorities. 

Doug Andres, a spokesman for McConnell, said that during Tuesday's meeting, the GOP leader "expressed his long-held view that the crucial, longstanding, and bipartisan Senate rules concerning the legislative filibuster remain intact, specifically during the power share for the next two years."

"Discussions on all aspects of the power-sharing agreement will continue over the next several days," Andres said.

But McConnell's decision to drop the filibuster into the discussion over how to organize a split Senate drew fierce pushback from outside groups, which urged Democrats to reject the GOP leader's gambit. 

"Senator McConnell knows that the filibuster is the best weapon he has to control the Senate from the minority and prevent Democrats from delivering on the promises they made to voters, which is why he is so desperate to maintain it," said Fix Our Senate, a coalition of outside groups that support nixing the filibuster.

Democrats don't currently have the votes in the caucus to nix the filibuster. Several have signaled skepticism about getting rid of it, and Sen. Joe Manchin (D-W.Va.) has vowed that he will not vote to do so. Some [other] Democrats have said they will not vote to change the rules, though Republicans may want an ironclad commitment. Democrats would view any agreement on preserving the filibuster as a departure from past precedent of operating an evenly split Senate.

Democrats will have only a 50-seat majority, as incoming Vice President Kamala Harris can break a tie, meaning they would need the support of every member of the caucus if they were going to deploy the "nuclear option" and get rid of the filibuster with only a simple majority. 

McConnell indicated in a letter to the Senate GOP caucus that he wanted to use the negotiations with Schumer over how to organize the Senate to get a deal on the future of the filibuster. 

“I believe the time is ripe to address this issue head on before the passions of one particular issue or another arise," McConnell wrote. 

Without a deal between McConnell and Schumer, the Senate is expected to be stuck in limbo until the two leaders work it out, including Republicans still having a majority on some committees even though Schumer will become the majority leader of the Senate on Wednesday once three new Democratic senators and Harris are sworn in. 

• Democrats swear in three senators to gain majority
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The eventual agreement is expected to largely mirror a 2001 power-sharing agreement where the party in the White House technically had the Senate majority. Under that deal, Democrats would also chair the committees, but legislation and nominations that got a tie vote in committee could still be sent to the floor. 

A Schumer spokesperson said on Tuesday night that they had a "substantive conversation" and "made progress" on issues such as confirming President-elect Joe Biden's Cabinet picks and holding a second impeachment trial for President Trump. 

"On an organizing resolution, Leader Schumer expressed that the fairest, most reasonable and easiest path forward is to adopt the 2001 bipartisan agreement without extraneous changes from either side," the spokesman said.

Obama Pushes His Choice for Position on Appeals Court

NY TIMES

With a coordination and an energy that echo a Supreme Court nomination fight, the Obama administration is pushing for the confirmation of a senior Justice Department lawyer to the country’s most prestigious appellate court. If the effort fails, it could lead to a confrontation with the Senate over the long-simmering issue of judicial nominees.

The White House is lobbying some of the president’s most vocal foes, including Senator Ted Cruz of Texas. Administration officials are trumpeting the endorsement of top Republican lawyers like Kenneth W. Starr, the special prosecutor who investigated the Clintons. And former clerks for Supreme Court justices, liberal and conservative, are writing letters of support for the nominee, Sri Srinivasan.

[NY TIMES :  Srinivasan, ... breezed his way through an uneventful Senate confirmation hearing on Wednesday that ended with at least one Republican saying he would support the nomination. Even the vote of a single Republican on the Judiciary Committee would be an encouraging sign to the White House that Mr. Srinivasan was not headed toward the same fate as the president’s most recent nominee to the powerful court, Caitlin J. Halligan, who withdrew in March after a Republican-led filibuster ]

The nomination will test an aggressive new strategy that the White House and Democrats are hoping will put Republicans in a bind: approve the highly regarded Mr. Srinivasan or risk forcing a change to Senate rules that could prevent Republicans from filibustering nominees.

Beyond its import for other nominations, Mr. Srinivasan’s confirmation matters for its own sake. Mr. Obama has yet to leave his mark and fill any of the four vacant seats on the court, which often decides major federal cases and has been a steppingstone for Supreme Court justices. Four of the current justices served there first.

As a 46-year-old lawyer with bipartisan backing who would become the first appeals court judge of South Asian heritage, Mr. Srinivasan himself is a potential Supreme Court candidate.

“There really is no good reason not to confirm Sri — and no good reason after his hearing not to give him a speedy vote,” said Walter E. Dellinger III, who served as acting solicitor general under President Bill Clinton and is one of the organizers of the effort to burnish Mr. Srinivasan’s centrist credentials so Republicans will feel they have little choice but to support him.

----
The list of high-profile lawyers supporting his nomination reads like a strange bedfellows guide to Washington. Along with Mr. Starr, Paul D. Clement and Theodore B. Olson, both solicitors general under President George W. Bush, signed a letter of support drafted by Mr. Dellinger. So did nine other former solicitors general or top deputies, including Seth P. Waxman, a Clinton appointee, and Neal Katyal, Mr. Srinivasan’s predecessor.

The efforts to push Mr. Srinivasan to confirmation — some directed by the White House, and others led by coalitions of lawyers that have the Obama administration’s blessing — would probably not have been necessary in years past. Democrats started aggressively filibustering judicial nominees during the George W. Bush administration, a practice Republicans have escalated.

“We’ve lived through this atmosphere since the confirmation hearings of Judge Bork,” Mr. Starr said, recalling the bitter 1987 defeat of Robert H. Bork, a conservative Supreme Court nominee, by Democrats. “I wish,” Mr. Starr added, “we could get past the era of such a deeply politicized process.”

Resistance on Method for Curbing Filibusters

 

 

NY TIMES  JENNIFER STEINHAUER  Published: November 28, 2012

 

 

Senator Harry Reid of Nevada knew he would anger Republicans when he threatened to change the rules of the Senate to make it harder for the minority to gum up legislation. But he is also running into resistance from fellow Democrats about the way those rules would be changed — essentially by ramming the changes through with 51 votes, rather than with the agreement of two-thirds of the Senate,...

 

I am very leery about changes to rules, except by the use of the rules,” said Senator Carl Levin, a veteran Democrat from Michigan, “and the rules require two-thirds of votes to change the rules. I prefer not to use a mechanism which I believe is dubious.”

 

For several years, Republicans have repeatedly pulled out a once rarely used weapon from the procedural arsenal — the filibuster — to eat up time on the Senate floor and stall or kill legislation offered by Democrats.

 

Mr. Reid is not seeking to end the filibuster entirely. Rather, he wants to prevent it from being used to prevent debates on bills, to block conference negotiations between the House and the Senate on legislation, and to force senators who long to filibuster to do it the old-fashioned way: by standing on the floor talking on and on, rather than by voting with colleagues to prevent debate and then skedaddling out of town.

 

Because Republicans are united in their dislike of the proposed changes, Mr. Reid would never get 67 votes — two-thirds of the Senate — to break a filibuster on the filibuster change. So he could instead avail himself of a controversial option that some proponents believe is available only on the first day of a new Congress and change those rules via majority rule, or 51 votes. Opponents insist that such a move would violate Senate rules.

 

A majority of Democrats, frustrated by what they say is the consistent and brazen abuse of the filibuster by Republicans, appear to support changes to the rules, and some believe they do not go far enough. But others, deeply aware that a majority party today can be the sad and lonely minority tomorrow, are not keen on playing the “nuclear option” card, with majority rule.

 

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Mr. Harkin said he was not confident that the Democrats had the votes they needed to jam the changes through. “There are some Democrats who don’t want to change the way we do things around here,” he said. Other Democrats said that while they did not believe the votes were secure, they felt certain that their colleagues would come along if Republicans and Democrats could not come to an accommodation by the end of the year.

 

“I am an enthusiastic supporter of this,” said Senator Barbara Mikulski, Democrat of Maryland, reflecting the views of many Democrats. “There should always be the protection of minority rights, but at some point you have to show up or shut up.”

 

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Democrats argue that the filibuster has been increasingly used to block routine nominations, hold up Senate business and generally infuriate the majority, and that the rules must be tightened.

“The Judiciary Committee unanimously approves judges, yet those nominations come to the floor and we have people using a filibuster,” said Senator Daniel Inouye of Hawaii,...