© Greg Nash
In an interview this week, President Trump declared, “…[T]he filibuster concept is not a good concept to start off with…” He called the Senate rules “archaic” and demanded that they be changed.
In a remarkable tweet, he wrote, “either elect more Republican Senators in 2018 or change the rules now to 51 percent. Our country needs a good ‘shutdown’ in September to fix [the] mess!”
Setting aside the puzzle question of what a “good shutdown” would look like, the president jumped into a long-standing argument over the Senate’s filibuster.
Historically, the Senate has taken a dim view of being told what to do about Senate rules by presidents.
The reaction from the Republican Majority Leader Mitch McConnell (R-KY) was swift. At a press conference, Sen. McConnell referring to changing the filibuster on legislative matters, made clear, “That will not happen.” He declared, “There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar.”
He and the other senators who spoke out immediately against the Senate adopting House-like rules, including Democratic Leader Chuck Schumer(D-NY) should be commended.
In fact, earlier this month, a bipartisan group of 61 senators sent a letter to the Senate’s leadership expressing opposition to “…any effort to curtail the existing rights and prerogatives of Senators to engage in full robust and extended debate…”
They made clear they were united in their dedication to “…preserve existing rules, practices, and traditions as they pertain to the right of Members to engage in extended debate on legislation before the United States Senate…”
Yet, you can thank former Majority Leader Harry Reid (D-NV) and current Majority Leader McConnell for pushing the Senate out onto a slippery slope. By their separate actions, they have turned the so-called “nuclear option” from a parliamentary magic trick, into a way to alter Senate procedure.
It’s now widely reported upon as if it’s just a legitimate alternative way, under Senate rules to change the rules. It’s not. It is premised on the majority voting for the proposition that the words in the rule, “three –fifths of the senators duly chosen and sworn,” can be interpreted as meaning a “simple majority.”
It’s easy to see the absurdity of that.
On April 6th, when Senate President pro Tempore Orrin Hatch, declared, following the 48-52 vote, “The decision of the Chair does not stand as the judgment of the Senate,” it marked a dark day in the Senate’s history.
The Senate voted through that parliamentary gimmick popularly labeled as the “nuclear option,” to broadened the ill-advised precedent regarding presidential nominations, that ending debate requires only a simple majority, to include the Supreme Court.
In November of 2013, when the then-Majority Leader Harry Reid led the Democrats to the first use of the nuclear option, he pushed the Senate out onto a slippery slope. The vote on April 6th sent the Senate further down that slope.
In a series of events both parties participated in damaging the Senate, the Supreme Court and our democracy.
Presidents in the future, if their party is in the majority in the Senate, will no longer need to take the minority party into consideration in selecting a Supreme Court nominee.
Ideologues outside of the judicial mainstream can be selected by presidents anxious to please their party’s base.
Many Republicans knew the nuclear option twisted the Senate rules and was a bad idea, they said as much when they objected to Reid’s us of it in 2013.
Nonetheless, they lacked the political courage to stand up to their base.
On the other side of the aisle, there were a number of Democrats who recognized that continuing to press the filibuster against Gorsuch was hopeless, self-defeating and would lead to the use of the nuclear option.
The precedent should not be further expanded. We should applaud the 61 senators who have stood “… united in [their] determination to preserve the ability of Members to engage in extended debate when bills are on the Senate floor.”
However, their resolve will inevitably be tested. At some point with an issue important to the majority’s base at stake, some will seek use the nuclear option to further distort the rules. The pressure will be enormous.
That slope is very slippery.
Once used, and now twice used, the inhibition against twisting the Senate rules by use of the nuclear option has been reduced.
Standing up for the Senate, will take courage.
Resisting their own base, when they ask to turn the Senate into another majoritarian body like the House of Representatives, will not be easy.
Under the Senate rules, ending debate on changing the rules actually requires a two-thirds vote. If the imperative exists to make changes in what President Trump calls the “archaic rules,” the way to do it and preserve the Senate’s role is through the rules themselves.
That’s the only way to protect the Senate and its history, the bipartisan way.
Richard A. Arenberg worked for senators Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate." He is a visiting lecturer of political science, and international and public affairs, at Brown University. His work has appeared in The New York Times, The Washington Post and The Boston Globe. Follow him on Twitter@richarenberg.