As President Trump and Republican Senate Majority Leader Mitch McConnell clash over whether or not to trigger the so-called “nuclear option” – which would eliminate the Senate rules that enable the Democratic minority to obstruct legislation such as a repeal of Obamacare – a congressman is offering a third way.
There’s an alternative to the binary choice of keeping the current Senate rules and the politically risky “nuclear option,” contended Republican Rep. Tom McClintock of California in an interview with WND.
Warning that the Senate’s rule requiring 60 votes to close debate is the “single biggest obstacle to the Trump administration’s agenda,” McClintock spelled out his proposal to restore the filibuster’s original intent of promoting thoughtful deliberation rather than blocking legislation.
Instead of getting rid of the filibuster, he proposes eliminating the “two-track” system instituted in 1970 by Senate Majority Leader Mike Mansfield that allows the Senate to simply move on to other legislation rather than being forced to engage in extended debate a la “Mr. Smith Goes to Washington.”
Pointing out that the number of filibusters exploded after the two-track system was introduced, McClintock said returning to the pre-1970 rules would mean that the Senate would be forced to deal with a filibuster before moving on to other matters.
He argues “it is precisely this inconvenience that made it such a rare event and built pressure on both sides to resolve an impasse.”
McClintock told WND the response to his proposal from House colleagues has been “universally positive,” and some Senate colleagues also have been favorable, including one who said the proposal circulated in the Senate when it came out.
“But obviously nothing has come of it,” the congressman told WND.
“That is particularly unfortunate, because this is not some act of God that is beyond their control, or some insurmountable obstacle in the Constitution,” he said.
“This is a very deliberate choice Senate Republican are making, not to reform their cloture rule.”
McClintock emphasized his proposal doesn’t mean abandoning the principle of giving the minority a voice; “it means restoring the principle to its original purpose.”
The pushback from senators, he said, is that the current rules provide a good way to turn back bad legislation.
“My response is, yes, it’s a good way to stop bad legislation, but it’s an even more effective way to stop very good legislation. And you’ve got to decide whether you want to be a successful minority or a successful majority,” he told WND.
“You can’t be a successful majority with that rule in place, and you are on a fast track to becoming minority,” McClintock warned.
“And don’t think you will be successful, because I doubt that (Senate Minority Leader) Chuck Schumer is going to hesitate for a moment to reform the cloture rule if the Democrats seize control.”
McClintock spelled out his proposal in a speech at Hillsdale College that was published by the school’s newsletter, Imprimis, in January.
He explained at that time that the modern Senate filibuster, requiring 60 votes to close debate on most legislation, “has become a tool for the minority to block any meaningful legislation from being enacted or even considered.”
“Given its record of abuse in recent years – by both parties – the Senate needs to repair its rules regarding the filibuster if it is to have any hope of performing its constitutional duty,” he said in the speech.
“Great debates should be had on great matters – but not great debates on whether to debate,” McClintock insisted.
‘Our members don’t want to change it’
On Wednesday, President Trump repeated his call for the Republican-run Senate to abolish the filibuster rule in order to pass his agenda.
Trump tweeted: “If Republican Senate doesn’t get rid of the Filibuster Rule & go to a simple majority, which the Dems would do, they are just wasting time!”
In his speech at a rally in Phoenix Tuesday night, Trump said: “I have a message for Congress tonight: You’re job is to represent American families, American people, American workers. That’s your job.”
He urged Congress to pass bills on border security, tax cuts and the repeal of Obamacare.
“Our friends in the Senate, oh boy. We have to get rid of what’s called the filibuster rule; we have to,” he said. “And if we don’t, the Republicans will never get anything passed.”
He said that with only 52 Republicans in the Senate, eight Democrats are controlling the legislation.
“We have over 200 bills,” he said.
The White House and Sen. McConnell’s office did not reply to WND’s request for comment on McClintock’s proposal by the time this story was published.
Earlier this year, McConnell triggered the nuclear option regarding Supreme Court nominees, meaning only a simple majority of 51 votes was needed to proceed on the confirmation of Justice Neil Gorsuch, rather than 60.
Then-Senate Majority Leader Harry Reid’s decision to go nuclear in 2013 regarding lower-court judges nominated by President Obama gave McConnell plenty of political cover at the time.
But in May, WND asked McConnell if he would reconsider eliminating the filibuster on legislation, particularly if he came to the conclusion the Democrats would not negotiate in good faith and seek only to block the GOP agenda.
Spokesman Don Stewart replied: “Our members don’t want to change those rules.”
The New York Times reported this week McConnell has privately expressed frustration with what he describes as Trump’s lack of knowledge and disregard for the legislative process.
Last month, Matthew Spalding, the dean of educational programs at Hillsdale and head of the Allan P. Kirby, Jr. Center in Constitutional Studies and Citizenship in Washington, told WND the filibuster “was never intended to give the minority power to stop legislation.”
“It was intended to delay it. It was intended to slow-walk it,” he said. “It was intended to allow the minority to say whatever they wanted to say in objection in a public forum, in a deliberate legislative way.”
‘Mere threat’ kills a bill
McClintock pointed out that the rule requiring a supermajority to end debate and move to a final vote was implemented in 1917. But the physically demanding requirement that a senator hold the floor for hours on end made the filibuster rare, with only 58 in the next 52 years.
But, since the 1970 rule change, the number of filibusters has exploded by a magnitude of 36-fold, he pointed out, with 1,700 in the 46 years since then.
The “two-track” system allowed the Senate, by unanimous consent or the approval of the minority leader, to bypass a filibustered bill and go on to another.
“The rule relieved a filibustering senator of the job of having to talk through the night and it relieved his colleagues of their frustration,” McClintock noted in his Hillsdale speech.
Today, he said, “the mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business.”
“The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution,” McClintock said.
Along with getting rid of the two-track system he proposed four other reforms:
- Restore the parliamentary principle that debate must be germane to the pending piece of legislation. (“The Senate may pride itself on colorful tales of Huey Long reading Cajun recipes on the Senate floor. But how does this practice fulfill the role of the Senate as a deliberative body?”)
- Make the “motion to proceed” undebatable, or at least subject to a majority vote. (“This incidental motion is itself now subject to filibuster, which prevents the Senate from even getting to actual bills. Great debates should be had on great matters – but not great debates on whether to debate.”)
- Limit senators to two speeches on a question. (“Under current Senate rules, a single senator can make two speeches on every motion every legislative day.”)
- After a certain period of debate has elapsed – during which filibustering can occur – allow a majority to set a limit for individual speeches on a pending question to something like two hours.