The Patriot Post® · Trump vs. the Filibuster

President Trump brings an outsider’s perspective to the long debate over the Senate filibuster. An overwhelming majority of the Senate disagrees with his desire to kill the filibuster, which means he doesn’t have a prayer of winning. But he’s not entirely wrong, either.

Set aside Trump’s sledgehammer tweets directed at Majority Leader Mitch McConnell. In private conversations, Trump has made a reasonable and sophisticated case against the filibuster. Not only has the filibuster been eliminated for appointments, Trump has noted, it has also been eliminated (through the process of reconciliation) for some of the most important things the Senate does — that is, for the budget and related bills it passes each year. So now, after all those changes, what remains of the filibuster is somehow supposed to be sacred and can never be changed again?

Trump’s question not only recognizes the reality of former Majority Leader’s Harry Reid’s nuclear-option destruction of the filibuster for appointments, and McConnell’s extension of that to Supreme Court nominations. It also takes into account the reality of reconciliation, by which, a generation ago, the Senate killed the filibuster for budget-related bills, allowing those measures to pass on a simple majority vote. In other words, the filibuster has been steadily whittled down — by the Senate itself, of course, and not by a headstrong president — so why can’t the Senate do it again?

Trump doesn’t have the slightest chance, of course. In May, when the president called for an end to the filibuster, McConnell said, “There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar. And that will not happen.”

In return, Trump has railed against McConnell and Senate tradition. Recently the president tweeted, “If Senate Republicans don’t get rid of the Filibuster Rule and go to a 51% majority, few bills will be passed. 8 Dems control the Senate!” A month ago, Trump tweeted, “The very outdated filibuster rule must go. Budget reconciliation is killing Rs in the Senate. Mitch M, go to 51 votes NOW and WIN. IT’S TIME!”

It would be an understatement to say McConnell is not convinced, and he has essentially ended the discussion with his over-my-dead-body pronouncements.

One of the problems in the Trump-McConnell relationship is that Trump tends to treat leaders in Congress as if they are his employees instead of leaders elected on their own and not beholden to the president. Plus, Congress is not only a separate branch of government, it is the first branch of government; a united Congress can remove the president, while it doesn’t work the other way around. Nevertheless, Trump whacks away at some of the lawmakers he will need to pass his agenda.

One point heard often in the debate is that Trump can rail all he wants about the filibuster, but the real problem is that he couldn’t get 50 Republicans to vote with him on Obamacare, and changing the filibuster rules wouldn’t change the result. That’s probably not entirely accurate. The House had to craft its bill specifically to accommodate the Senate’s reconciliation requirements — meaning it was shaped by the filibuster. The Senate had to craft its bill with the same considerations. Senate drafters had to leave provisions that might have gotten 50-plus votes out of the bill in order to stay within reconciliation rules. In short, the House and Senate bills were fundamentally shaped by the filibuster, and the filibuster was very much a part of Obamacare reform’s defeat in the Senate.

Now, stonewalled by McConnell, Trump might look for a compromise that moves him closer to his goal. Indeed, short of fully eliminating the filibuster, Trump could propose getting rid of the 60-vote standard on motions to proceed, streamlining voting on procedural matters, and other initiatives. Those might not succeed either, but at least the president would have tried.

Hypocrisy is often at play when it comes to the filibuster; senators in the majority oppose the practice, while senators in the majority support it. But there is also a principled, consistent position on the filibuster. Veteran senators like McConnell know that while they might be in the majority now, they could be in the minority next year. They know a lot of bad bills might have become law had the filibuster not existed. So many of them protect the filibuster whether they’re in charge or not.

The president is an outsider who shares none of those concerns. But that doesn’t mean he doesn’t have a point. The Senate has changed its rules, including those on supermajorities, many times over the years. And in the future, it might change them again — in Trump’s direction.

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