Over the past two decades both parties in the U.S. Senate have threatened to repeal the century-old filibuster by use of the so-called “nuclear option.” That term described the rare parliamentary procedure used to change the historic role the filibuster played in ensuring individual members’ unqualified leverage over the Senate floor.
Controversy around the privilege began in the 1800s; and use of the device (which often held up Senate business) eventually led the chamber to impose limits on it. Consequently, in 1917 the Senate adopted a rule to allow it to invoke cloture and cut off debate by a 2/3rds vote.
In 1975, the number was amended reducing the votes necessary for cloture down to 3/5ths or 60 out of 100 senators. That threshold was respected for decades during trying political times in order to protect the rights of the minority position in our country’s most deliberative body. However, by the early 2000s both parties began to force 60-vote margins more frequently on substantive bills as well as for judicial and presidential appointees. Members began to talk of eliminating the time-honored privilege altogether, but refrained out of deference to the institutional protection it afforded the minority.
In 2013, however, Democrats finally pulled the trigger, and on a party-line vote stripped the minority of its rights by throwing out the filibuster to require only a majority vote of 51 regarding all federal district and appellate court judges and presidential appointees. The Rubicon had been crossed. To those who think they hold the cards today, beware — tomorrow never comes. Just a few years later Republicans recaptured the Senate and the White House, and used that powerful rule change (extended to include Supreme Court Justices) to confirm 174 federal district court judges, 54 federal court of appeals judges and 3 Supreme Court justices — all which required only 51 votes.
It’s been said, power begets power. Democrats removed the long-standing filibuster rule on a party-line vote in 2013; in 2017, Republicans extended it on a party-line vote to the Supreme Court. Does either appreciate that their short-term gain will come back to haunt them when next they lose control — or the consequent erosion on the institution? New Majority Leader Chuck Schumer now wishes to throw-out the filibuster as it applies to substantive legislation — likely on a 50/50 vote with the vice president breaking the tie. Surely, he doesn’t underestimate the power that gives his Republican rivals should they regain control in a few short years?
If the Senate throws out the last vestige of minority party protection this year, America’s once respected most deliberative body will no longer exist as such — there will be no more need to deliberate — just schedule the party-line votes. Who is this provisional game in Washington helping? Why not forgo these short-lived advantages of either party for the long-term welfare of the American people and the institution of the Senate itself?
A Montana attorney and lobbyist, Roger Fleming was previously a counsel on the U.S. House Judiciary Committee, and is the author of "Majority Rules" and "Outsider Rules," both fictional exposés about insider politics.