McConnell must go nuclear: Abolish the legislative filibuster

Sen. Chuck Schumer (D-N.Y.) blinked on the shutdown — but then backed out of his agreement with the president to fully fund the border wall. So we may have yet another shutdown in February, and, predictably, some in the Republican leadership may want to compromise just to pass the budget.

Why on earth is the Senate minority leader in the loop at all in a Republican Senate, much less effectively sitting in the driver’s seat? It’s because of the charred remnants of the old Senate tradition, still called the “filibuster,” long after the requirement to demonstrate rhetorical stamina was eliminated.

{mosads}Until the rules were changed in 1970, use of the filibuster was incredibly rare, but today, every bill is effectively held hostage to a 60-vote majority found nowhere in the Constitution. The effect has been to neuter the Senate and thereby the House. To force Republicans to write bills for Senator Schumer’s approval rather than for Americans who want to secure our border, restore our nation’s defense, bring home our jobs and repeal and replace ObamaCare.

The attempts to repeal and replace ObamaCare demonstrated the folly of having allowed the legislative filibuster to survive — to win 60 votes, any such bill would either end up looking a lot like ObamaCare or never pass.

The continuing resolution is another example. To get to 60, it isn’t a conservative or Trump budget, but is in many ways Senator Schumer’s. There’s continued funding for Planned Parenthood, inadequate non-defense discretionary cuts, inadequate funds to effectively rebuild our military, and no defunding of sanctuary cities.

Defense Secretary Jim Mattis protested that the CR harms our military readiness:

“As hard as the last 16 years have been, no enemy in the field has done more to harm the readiness of the U.S. military than the combined impact of the Budget Control Act, defense spending cuts and operating in nine of the last 10 years under continuing resolutions.”

Further, cloture ties up the works by allowing 30 hours of debate before a vote is held, which slowed to a crawl the confirmation of many of President Trump’s nominees.

This obstructionism is so endemic that the Democrats even filibustered the nomination of Sigal Mandelker to be the under secretary for Terrorism and Financial Intelligence at Treasury — but then almost all Democrats joined together in confirming her by an overwhelming 96-4 vote.

There’s lots of talk about a return to regular order and passing real budgets, but as long as the legislative filibuster survives, there is little chance we will ever see anything but perpetual continuing resolutions.

Sen. Schumer’s views on the use of the filibuster have changed drastically since 2013, when he pledged:

“We much prefer the risk of up-or-down votes in majority rule, than the risk of continued total obstruction. That is the bottom line, no matter who’s in power.”

Last year, a bipartisan majority of 54 Senators voted to confirm judge Neil Gorsuch as an associate justice on the U.S. Supreme Court. However, had the Senate not eliminated the filibuster for Supreme Court nominees, the president would have been forced to beg Sen. Schumer to suggest a nominee that would please the Democrat minority.

The Senate did the right thing in ending the filibuster for Supreme Court nominees, but this followed the Democrat’s first shot. Without Democrats eliminating the filibuster for non-Supreme Court nominees, it is doubtful that anyone would have dared touched the “sacred” filibuster.

Arguments that the legislative filibuster must be maintained by Republicans were based on a myth that the Democrats would never push the nuclear button themselves; that whenever Democrats next win a majority, Republicans could use it to block a flood of liberal legislation. However, it was Sen. Harry Reid (D-Nev.) who in 2013 first pushed the button and violated the 2005 “Gang of 14” agreement with Senate Republicans to not filibuster judicial nominees, creating the precedent for the eventual end of all filibuster rules.

Then, during his 2016 campaign for vice president, Senator Tim Kaine (D-Va.) insisted the Democrats eventually “will change the Senate rules to uphold the law,” meaning they would abolish at least the Supreme Court filibuster.

It’s a fantasy to believe a Democrat majority wouldn’t end the legislative filibuster the moment they may regain a majority. The only difference is whether we take advantage of our majority now and build the border wall, stop illegal immigration, bring home our jobs from China and Mexico, rebuild our defense, and of course repeal and replace ObamaCare.

If the filibuster is left intact, few of the president’s and Congress’ major promises will be fulfilled, and the GOP could go into the midterms and 2020 facing voters angry at unfulfilled promises.

President Trump agrees with the rising chorus to abolish the legislative the filibuster, Tweeting that if the “stalemate continues, Republicans should go 51% (Nuclear Option” and vote on real, long term budget, no C.R.s!”

Congress can then pile excellent conservative bills on the president’s desk to deliver on the promises they made to the voters and help make America great again. If the Senate refuses to abolish the last part of the filibuster, at least require senators to hold the floor as a test of their rhetorical stamina.

One more thing: if the Senate ends the legislative filibuster, Congress had better pass a budget that includes full funding for the wall, and then pass actual budgets by September 30 in regular order.

Art Harman is the director of the Coalition to Save Manned Space Exploration, and served as the legislative director for Rep. Steve Stockman (R-Texas) in the 113th Congress. He is an expert on foreign affairs, border security, space and other key issues. Harman studied foreign policy at the Institute of World Politics.