God Save - and Restore - the Senate Filibuster

With the retirements of the two Democratic Senators responsible for saving the US Senate's "legislative filibuster," GOP Senate leadership candidates should move boldly to protect it.

Warning: “inside baseball” alert.

As my reader knows, there’s a rare “open seat” election for Senate Republican Leader for the next Congress. I wrote about it recently. The question is whether that individual will be the Senate’s Majority or Minority Leader.

Republicans hold 49 US Senate seats and need a net gain of two to ensure their return to a majority. With Democrat Joe Manchin's retirement in a heavily Republican state, a GOP gain from West Virginia is practically assured. In no particular order, other races to watch for GOP gains include Arizona, Montana, Ohio, Pennsylvania, Maryland, Wisconsin, and Nevada. Keep an eye on New Jersey and Virginia. No Republican seats seem imperiled, but there’s always a surprise in every election.

I pray that Steve Garvey will be California’s surprise penitent gift to America in November. The Golden State hasn’t been nice to the nation politically for decades, and ridding Virginia of Hillary Clinton’s 2016 running mate would be a blessing.

Note: each of the Democratic incumbents in this state has won an election in strong Democratic years, including 2006 (Bush's “six-year itch”), 2012 (Obama reelection), and 2018 (Trump midterm). Their luck appears to have run out.

With so many Democratic seats in play and strong GOP candidates in those aforementioned states, the GOP is favored to win a majority when the new 119th Congress convenes in January 2025. It matters. The majority controls the Senate floor and sets the agenda. It also comes with committee chairmanships and subpoena power.

There are two known candidates for the position thus far: current Assistant Republican Leader John Thune (R-SD) and his predecessor, John Cornyn (R-TX). There is no clear favorite, but it’s early.

Not the Ghostbusters: US Senators, from left to right, John Barrasso (R-WY), 71; John Thune (R-SD), 63; Mitch McConnell (R-KY), 82; and John Cornyn (R-TX), 72.

US Sen. John Barrasso (R-WY), Chair of the Senate Republican Conference, the third-ranking leadership position, is running to replace the term-limited Thune as Assistant Leader, or “whip.” There is no word on candidates for positions other than US Sen. Tom Cotton (R-AR), who is considering a run for Barrasso’s current job as Chair of the GOP Conference. Barrasso is also term-limited.

Already, the GOP leader race seems more “public” than most. Cornyn was first out of the box, referencing an early preemptive call to former President Donald Trump to remind him how well they worked together to get his agenda through the Senate. Trump thanked Cornyn by publicly encouraging US Sen. Steve Daines (R-MT), current chair of the National Republican Senatorial Committee, the party’s official campaign arm, to run. Daines, a Trump loyalist, didn’t say yes, but “outside endorsements” are rarely valuable during insular Senate leadership contests. However, significant GOP Senate electoral gains are, and Daines could help deliver that. Stay tuned.

Thune “announced” he was running to South Dakota media. Cornyn followed that with a promise to pursue extending the GOP Conference’s current six-year term limits on the other five leadership positions to the floor leader’s position. It was specifically excluded from term limits when they were imposed following the 1994 election, including on GOP Committee chairs and ranking members. Senate Democrats do not impose term limits on their leaders.

If prospective Senate GOP leaders are going public with issues, here’s one: change Senate rules to protect the legislative filibuster from the “nuclear option.” That is the ability to change the rules, including eliminating the filibuster, with a simple majority. They should do it early in the new Congress when they have the most leverage - especially if Donald Trump is in the White House.

I would also open the door to restoring the filibuster for executive branch and judicial nominations, including Supreme Court ones. Why now? Because the two Senators who have preserved the filibuster against the tyranny of a Senate Democratic majority, Joe Manchin (D-WV) and Kyrsten Sinema (D/I-AZ), are retiring this Congress. Beginning in January, there will be no Democratic Senators who can be counted on to protect the legislative filibuster. And if Democrats win control again after the 2026 elections, Katy bar the door. Senate Democrats will kill the filibuster at their first opportunity, sans Manchin and Sinema. Trump can’t veto Senate rules and can only veto bills a majoritarian Senate passes until he can’t, and who knows who will replace him?

Trump doesn’t exactly have a record of growing GOP majorities in Congress. Congress lost their GOP majorities on his watch.

This is a letter from 61 US Senators, signed by 33 Democrats, in April 2017. Many Democratic Senators who now support eliminating the filibuster, including the notoriously hypocritical Bob Casey (D-PA), signed this.

Trump enthusiasts will immediately reject the notion, but maybe only some of his most ardent supporters in the Senate. Trump pressured McConnell to eliminate the legislative filibuster in 2017 as his agenda stalled on Capitol Hill. McConnell famously said no. Sixty-one US Senators, including 33 Democrats, signed a letter in 2017 organized by Republican Susan Collins (ME) and Democrat Chris Coons (DE) to protect the filibuster. Why would a President with a potentially GOP Congress - a trifecta - neuter his power by cementing the Democrat’s ability to weaken legislation if not kill both bills and judicial nominees?

Fast forward four years, and a new Democratic President. More than two dozen Senate Democrats called to eliminate - or, in their weasely words, “reform” - the filibuster. Among them was Senator Coons. On March 16, 2021, nearly two years ago, Senator McConnell told his colleagues that he stood with most Democrats just four years earlier to protect the filibuster. He pointed out past comments by current Majority Leader Charles Schumer (D-NY) and Assistant Leader Richard Durbin (D-IL).

Mr. President, today I’d like to begin with a few quotations, “The legislative filibuster is the most important distinction between the Senate and the House. Without the 60 vote threshold for legislation, the Senate becomes a majoritarian institution just like the House, much more subject to the winds of short-term electoral change. No Senator would like to see that happen. So let’s find a way to further protect the 60 vote rule for legislation.” That was the current democratic leader, Senator Schumer in April of 2017, less than four years ago.

Prediction: If Senate Republicans capture a majority and Donald Trump wins the presidency this fall, these same Senate Democrats will exercise the “flip flop flip” and suddenly return to their former love of the filibuster, with an array of left-wing special interest groups in tow. Democrats only take positions on issues that benefit them politically and are not above changing course, no matter how it looks. Consistency and principle are the hobgoblins of a Republican mind, it seems.

US Senator Strom Thurmond, then a Democrat from South Carolina, still holds the record for the longest “speaking” filibuster against the 1957 Civil Rights Act: 24 hours, 18 minutes. However, filibusters do not work this way anymore. Voting to prevent cloture, a “rolling filibuster,” is the tactic of the day.

In fairness, Republican hands aren’t exactly clean on this issue, either. In 2005, then-Majority Leader Bill Frist (R-TN) raised the possibility of triggering the “nuclear option,” a term former Senate GOP leader Trent Lott takes credit for, on stalled George W. Bush nominations. A bipartisan group of Senators - the “Gang of 14” - helped avert that. The filibuster was protected in exchange for moving on a few Bush nominees. The GOP controlled the White House and both chambers of Congress. Unlike when Democratic Majority Leader Harry Reid first activated the “nuclear option” during the Obama Administration for lower-level judiciary and all executive branch nominations, Frist never did.

My proposal for Senate GOP leader candidates would be to support closing the “nuclear option” loophole that allows a “simple majority” of US Senators, 51, to make a motion to “overturn a ruling of the chair.” Senate rules technically cannot be changed or made without a two-thirds vote of the Senate, but Senators have known about the “nuclear option” loophole for a century.

Only one filibuster requirement remains—for legislation. If that goes, the Senate will be no different than the majoritarian US House, its raison d'être eliminated, differentiated only by longer terms and a smaller body. The protection of minority rights—protecting a political, not a racial, minority—will be discarded into the dustbin of history.

Why is that a big deal? Let’s scroll back to the early days of the Biden Administration and a Democratic Congress - a trifecta. What was their agenda? HR 1, A federal takeover of elections to practically terminate voter integrity laws, including voter ID, and promote “vote by mail” and ballot trafficking. HR 2, the “Moving Forward Act,” a bill to massively regulate transportation with a focus on climate change and helping unions, especially at Amtrak. HR 3, price controls for prescription drugs. HR 4 would expand “Voting Rights Act” Department of Justice preclearance requirements in states that now tend to vote for Republicans. And HR 5, the Equality Act, to expand rights based on sexual orientation and “gender identity.”

And how about increasing the size of the US Supreme Court to 13 or more members to overcome the current 6-3 “conservative” majority? Or, maybe, finding ways to eviscerate the Electoral College.

Four of those five bills passed the House on mostly party-line votes. None ever passed the Senate, thanks in large part to the filibuster.

How would a new leader protect the filibuster? He or she would amend or propose a Senate rule to require a two-thirds vote to “overturn a ruling of the chair” on rulings from the chair on Senate rules. Thus, it would put the “nuclear option” on the same basis as adopting a Senate rule. That would protect the legislative filibuster. If it takes a two-thirds vote to pass a rule, it should take two-thirds to eliminate it. It seems fair.

In 2005, when Majority Leader Frist publicly threatened to involve the “nuclear option,” the far-left progressive magazine, The Nation, opined this, proving a broken clock is correct twice a day:

“If the (filibuster is eliminated), Congress will become an altered branch of government. In the absence of rules that require the consideration of minority views and values, the Senate will become little different from the House, where the party out of power is reduced almost to observer status. . . This is a moment when we decide whether this country will remain a democracy in which those who govern must play the rules or will become a winner-take-all system where the gravest fear of the Founders — tyranny of the majority — will be the last legacy . . .”

Today's proponents of ending the filibuster point to its use to defeat or forestall civil rights legislation. Senate Republicans in 1964 joined enough Democratic Senators to overcome a Southern Democratic filibuster to enact the Civil Rights Act. The filibuster, which has been around almost as long as the Republic, has been used for everything from stalling legislation to create the Merchant Marine at the outset of World War I (resulting in the first rule to “limit debate”) to Obamacare (unsuccessfully) and scores of other bills. Its roots extend well before the era of “Jim Crow.” Outgoing Vice President Aaron Burr deserves credit for its eventual establishment in 1806.

I don’t expect any Senate GOP leader candidates to take me up on the idea. It’s brazen and will be seen, among those guilty of narrow, short-term thinking, as “anti-Trump.” It would appeal to Americans concerned with preserving the Senate as the “cooling saucer of democracy” and preventing future abuse by a tyrannical majority from either party or major faction within it. It might also help preserve whatever legislative legacy Trump engenders.

With neither Manchin nor Sinema nor the prospect of any Democrat like them being elected to the Senate anytime in the foreseeable future, the filibuster will only be preserved if Republicans are in charge.

Senator McConnell said it best to his colleagues on the Senate floor almost precisely two years ago:

“And then there’s the small matter that majorities are actually never permanent. The last time a Democrat leader was trying to start a nuclear exchange, I remember offering a warning. I said my colleagues would regret it a lot sooner than they thought. And just a few years and a few Supreme Court vacancies later, many of our Democratic colleagues said publicly that they did. Touching the hot stove again would yield the same result, but even more dramatic, as soon as Republicans wound up back in the saddle, 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. . .

So the pendulum, Mr. President would swing both ways and it would swing hard. . .”

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