As Republicans assume control of Congress this week, pundits and political observers are handicapping the odds of legislation passing the GOP controlled Senate. While House Republicans enjoy their largest majority in almost a century, Senate Republicans have just 54 seats in the Chamber. It is a solid majority but a handful of seats below the 60 vote threshold to end filibusters on legislation.
Conventional wisdom holds that the GOP will need the votes of 6 Democrats on any non-budget legislation. There is another tactic the GOP can employ, however. It could simply force the Democrats to actually conduct a filibuster.
Like many things in the Senate, the filibuster rule arose out of a historical quirk. It was not part of the original rules of the Senate. Vice President Aaron Burr, who at the time was under indictment for killing Alexander Hamilton in a duel, suggested to the Senate in 1805 that it scrap its “move the previous question” procedure. This procedure allowed the Senate to cut off debate on a measure and proceed to a vote. Burr argued the rule was redundant and should be eliminated to streamline the Senate’s procedure.
Without the “previous question” motion, the Senate created the possibility of a filibuster. If a Senator or group of Senators held the floor during the debate, a vote on the legislation would be put off until they yielded the floor. President Woodrow Wilson succeeded in getting the Senate to adopt a “cloture” rule allowing a super-majority to cut off debate. Wilson was frustrated that Senators were using the filibuster to block his legislative proposals.
The specific number of votes needed to invoke cloture have changed over the years. Today, 60 votes are needed to block the potential of a filibuster or stop one that has begun. Cloture isn’t a necessary hurdle to pass legislation; it merely stops the threat or the reality of a filibuster. Without a cloture vote, filibustering lawmakers still would have to hold the floor continually.
Rather than try to attract a handful of Democrat votes to invoke cloture, the Senate GOP should force the Democrats to conduct the filibuster. The Senate, for example, could bring to the floor a bill to repeal ObamaCare. Senate Democrats would naturally object, but they would then have to hold open the debate on the bill indefinitely. They would have to speak against repeal around the clock.
Would there be a greater, or more defining, political spectacle than Senate Democrats refusing to yield the floor in a defense of ObamaCare? No other Senate business could be conducted during this time, but the Republic would not only survive, it might actually thrive.
Controlling legislative chambers not only gives a party the ability to pass its preferred legislation, it allows it to set the terms of debate. Republicans support a number of measures popular with the public but opposed by various factions of the Democrat party. Rather than shudder at the threat of a Democrat filibuster, Republicans should give them their wish. Let Democrats debate ad nasueum against a balanced budget amendment, tax reform, or expanded energy exploration.
The challenges besetting our nation are too great to shrink before the threat of a filibuster. The GOP should embrace the filibuster and give the public a 24/7 glimpse of the Democrats’ legislative priorities.