[Editor's note: This story originally was published by Real Clear Politics.]
By Carl M. Cannon
Real Clear Politics
“You’ll regret this, and you may regret this a lot sooner than you think.” — Mitch McConnell on Nov. 21, 2013, in Senate floor speech to Harry Reid-led Democrats curtailing the filibuster for judicial appointments.
McConnell’s prediction came true, as he reminded Democrats in a 2019 New York Times op-ed, and it took only four years. “In 2017, we took the Reid precedent to its logical conclusion, covering all nominations up to and including the Supreme Court,” the Senate Republican leader wrote.
“So this is the legacy of the procedural avalanche Democrats set off: Justice Neil Gorsuch, Justice Brett Kavanaugh and 43 new lifetime circuit judges — the most ever at this point in a presidency,” McConnell added. “The consequences of taking Senator Reid’s advice will haunt liberals for decades.”
Liberals don’t seem to have absorbed this history lesson. Under the coaching of Chuck Schumer, Reid’s successor, Senate Democrats apparently can’t envision an adverse outcome in the next election, which is this year, or the possibility Republicans might turn their own tactics on the filibuster against them. This failure of imagination is not a new phenomenon. Neither is situational ethics on Capitol Hill.
“Here’s what we know about the Democrats: They were for the filibuster before they were against the filibuster,” Sen. Tim Scott, a South Carolina Republican, said last year. “I keep asking myself, ‘Will the real Chuck Schumer please stand up?’ Is it the one who was for the filibuster or is it the new one who is now against filibuster?”
Scott’s point was accurate, and his umbrage understandable. After clamoring for law enforcement reform, Democrats used the filibuster to prevent a vote on Scott’s criminal justice bill. Republicans concluded that Democratic Party leaders preferred a campaign issue to a solution. But it should also be noted that Tim Scott has a short memory. In 2015, a cabal of Senate conservatives carried water for restive House Republicans who floated the idea of doing away with the Senate filibuster.
Scott, recently arrived in the upper chamber from the House, was among them. “I’m actually pretty bullish on changing all the rules as I know them, quite frankly,” he said then. “Nominations, everything — I’m open to anything that makes this body actually functioning.”
Mitch McConnell and the GOP old guard successfully fought back that 2015 rebellion from their right flank. The difference today is that the Democrats’ Senate leadership isn’t resisting progressive purists in their ranks. Notwithstanding years of unambiguous support for the filibuster, Schumer is leading the charge against it — and bringing almost all his members with him.
Relic of the Past
Thanks to Frank Capra and Jimmy Stewart, the filibuster once enjoyed a cherished place in Americans’ popular imagination. In his 1939 movie classic, “Mr. Smith Goes to Washington,” director Capra — with Stewart in the title role — employed a heroic filibuster to resist corrupt cronyism. Stewart’s “Jefferson Smith” was so compelling that generations of political consultants fantasized about putting a version of him in the White House. (In the 1980s, one of those political consultants, Jimmy Carter pollster Patrick Caddell, envisioned a young Joe Biden as a possible stand-in for Jefferson Smith. Caddell, who died in 2019, eventually soured on the national Democratic Party, but never gave up on his dream.) But Frank Capra’s creation was a myth, as Biden himself acknowledged puckishly in 1984 when he quipped to the New Republic, “God, I wish I knew Senator Smith. He’s a helluva guy.”
Moreover, in real life the filibuster itself wasn’t always used for noble purposes. In the 1960s, for example, it was used by Southern Democrats to stall civil rights legislation. So, describing the filibuster as a “Jim Crow relic,” as former president Barack Obama did in 2020 while eulogizing civil rights icon John Lewis, strikes a chord with many Americans, even if it wasn’t altogether accurate. The problem here wasn’t the disparagement of the filibuster. It was the hypocrisy of the man doing the disparaging: When it served his political purposes, Obama loved the filibuster.
Although he served less than one term in the U.S. Senate, Obama often joined with the Democratic leadership in signing on to filibusters that blocked GOP-backed legislation he opposed. These thwarted bills ranged from defense appropriations and tightening border security to repealing the federal estate tax. Curbing the filibuster in those days was considered so taboo it was dubbed “the nuclear option.” When Republicans proposed invoking it to help confirm George W. Bush’s judges, Obama was among those who went ballistic. In a floor speech just 3½ months after he arrived in Washington, freshman Sen. Obama said it was “more about power than fairness” and that Republicans were using “an ends-justify-the-means mentality.”
“At the end of the day, [voters] expect both parties to work together to get the people’s business done,” Obama added in that April 13, 2005, soliloquy. “What they do not expect is for one party, be it Republican or Democrat, to change the rules in the middle of the game so they can make all the decisions while the other party is told to sit down and keep quiet.”
Only a few years later, however, President Obama lauded Senate Majority Leader Harry Reid’s efforts to curb the practice for judicial appointments. As some journalists noted, this constituted an unambiguous flip-flop.
In truth, the modern filibuster is nothing like the marathon speeches delivered by Jefferson Smith (and previous, and real, 20th century senators). All it takes these days is for the minority party to announce it has 41 votes in opposition to whatever is being proposed and — presto! — nothing happens on the Senate floor. Is this democracy at work in the world’s oldest deliberative body? Or is it a farce that makes a mockery of elective representation?
The answer one gets in the Senate (and in the White House, where the president and vice president are both former senators) depends solely on which party controls the gavel. And under Chuck Schumer, the Democrats have prioritized pragmatism over principle while wielding it.
“The bottom line is very simple: The ideologues in the Senate want to turn what the Founding Fathers called the cooling saucer of democracy into the rubber stamp of dictatorship.” That was Schumer on March 16, 2005.
“They believe if you get 51% of the vote, there should be one party rule,” Schumer added. “We will stand in their way! Because an America of checks and balances is the America we love. It’s the America the Founding Fathers created. It’s been the America that’s kept us successful for 200 years and we’re not going to let them change it! … We will fight, and we will preserve the Constitution!”
That Was Then, This Is Now
In a Jan. 3, 2022 “Dear Colleague” letter, Schumer expressed a new take on the Founders and the Constitution they created.
“The Senate was designed to protect the political rights of the minority in the chamber, through the promise of debate and the opportunity to amend,” he wrote. “But over the years, those rights have been warped and contorted to obstruct and embarrass the will of majority – something our Founders explicitly opposed. The Constitution specified what measures demanded a supermajority — including impeachment or the ratification of treaties. But they explicitly rejected supermajority requirements for legislation, having learned firsthand of such a requirement’s defects under the Articles of Confederation. The weaponization of rules once meant to short-circuit obstruction have been hijacked to guarantee obstruction.”
Republicans reacted as one might expect, just as they did Tuesday when President Biden threw his support behind a modification of filibuster rules.
“What changed, Chuck?” Florida Sen. Rick Scott asked in a written statement. “The answer, of course, is he is now in the majority and wants to do as he pleases rather than respect the longstanding rights afforded to the minority party. Schumer is only interested in trashing the filibuster now because he fears he will lose power in the next election.”
It’s a predictable, and understandable, criticism. But a close parsing of Schumer’s statements on this subject reveals a more nuanced position. Schumer doesn’t really deny he’s afraid his party will lose power in November. His position — and this is the official Democratic Party line from Joe Biden on down — is that he’s afraid the midterm election won’t be fairly contested. The Democrats’ stated view is that by tightening election laws in GOP-controlled state legislatures, it’s the Republicans who are fiddling with the hallowed levers of democracy. And Schumer set a rhetorical trap for those who think the current filibuster system is satisfactory:
“We must ask ourselves,” Schumer wrote in that Jan. 3 letter to his colleagues: “if the right to vote is the cornerstone of our democracy, then how can we in good conscience allow for a situation in which the Republican Party can debate and pass voter suppression laws at the state level with only a simple majority vote, but not allow the United States Senate to do the same?”
By way of response, Republicans assert that Democrats are grossly exaggerating the case — just as they are doing with the Jan. 6, 2021, storming of the U.S. Capitol — for partisan gain. Enacting uniform requirements that Americans show proper identification at the polls is not “voter suppression,” they say, and Jan. 6 was a riot, not an “insurrection.”
Republicans are not necessarily winning this argument in the court of public opinion. To bolster their case that this is a raw political power play by Democrats instead of a principled stance, they are rubbing Democrats’ noses in their previous filibuster stances. This isn’t hard to do. As recently as 2017, 61 senators signed a letter drafted by Republican Susan Collins and Democrat Chris Coons urging chamber leaders to preserve the filibuster. The signers were evenly divided — 30 Democrats, 30 Republicans — with one independent, Maine’s Angus King. Twenty-six of those Democrats remain in the Senate, and all of them except Joe Manchin are supporting Schumer’s gambit. (Another 2017 signer, Vice President Kamala Harris, would break any ties in the 50-50 chamber.)
Portraying Democrats as cynics is almost too easy for Republicans: Last Tuesday, to a group of supporters in Atlanta, the president said this: “The United States Senate, designed to be the world’s greatest deliberative body, has been rendered a shell of its former self. … We have no option but to change the Senate rules, including getting rid of the filibuster for this.”
But when he was still a senator (and a Republican was in the White House), Biden sang from a different hymnal:
“At its core, the filibuster is not about stopping a nominee or a bill. It’s about compromise and moderation. That’s why the Founders put unlimited debate in. … The purpose would be you have to deal with me as one senator. It doesn’t mean I get my way. It means you have to compromise. You may have to see my side of the argument.” That was Joe Biden on May 23, 2005. He continued: “I say to my friends on the Republican side: You may own the field right now, but you won’t own it forever. I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.”
In 2019, then-Sen. Kamala Harris pointed out to an interviewer that Democrats had used the current filibuster rule to thwart Republican efforts to defund Planned Parenthood and that getting rid of it would have “practical” considerations. This week she said this: “Nowhere does the Constitution give a minority the right to unilaterally block legislation. The American people have waited long enough.”
And so it goes, right down the roster of Democratic senators.
Asked in 2018 about abolishing the filibuster, Dick Durbin of Illinois recoiled in horror. “Well, I can tell you that would be the end of the Senate as it was originally devised and created going back to our Founding Fathers,” he said. “We have to acknowledge our respect for the minority, and that is what the Senate tries to do in its composition and in its procedure.”
Three years later, Sen. Durbin was just as passionate — on the other side. In a floor speech veering 180 degrees from his previous stance, he said, “The filibuster has a death grip on American democracy. It’s time we end its power to hold the Senate hostage.”
Here’s New York Democrat Kirsten Gillibrand on Jan. 22, 2019 — when Donald Trump was president: “I think it’s useful to bring people together. And I don’t mind that you have to get 60 votes for cloture because … if you’re not able to get 60 votes on something, it just means you haven’t worked hard enough, haven’t talked to enough people and trying to listen to their concerns and coming up with something they can support.”
Here is Gillibrand with Biden in the White House: “I support getting rid of the filibuster, because the purpose of keeping the filibuster in place is to prevent bad things from happening when you're not in charge,” she said on Nov. 21, 2021. “But the truth is, those bad things are happening right now, even though we have the majority.”
Republicans believe “hypocrisy” is too mild a word for this kind of thing. Some of their ire is also aimed at a media that uses Democratic Party talking points to frame the battle lines in this standoff. But if Republicans really wanted to make their adversaries squirm, they’d produce television ads pointing out that when it comes to the filibuster, Democrats are taking inspiration, if not marching orders, from Donald Trump.
As part of his extended tantrum over losing the 2020 presidential election, the 45th U.S. president helped make his fellow New Yorker Chuck Schumer Senate majority leader in the first place. Trump did so by actively suppressing the Republican vote in Georgia’s two U.S. Senate races — and this was conscious, not incidental, voter suppression. More to the point, when it comes to the filibuster, Schumer and the Democrats sound exactly like Trump.
Here’s what President Trump tweeted on July 29, 2017: “The very outdated filibuster rule must go. Budget reconciliation is killing R’s in Senate. Mitch M, go to 51 Votes NOW and WIN. IT'S TIME!”
In a subsequent tweet, Trump described Republicans who wanted to adhere to Senate traditions as chumps. “Republicans in the Senate will NEVER win if they don't go to a 51 vote majority NOW,” Trump wrote. “They look like fools and are just wasting time.”
But tying Trump around the Democrats’ necks would entail breaking the bonds that keep Republicans tethered to the previous president. This is a step the GOP is unwilling to take. He’s their anchor in more ways than one.
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