What Place Will the Filibuster Have In the 115th Congress?

Photo credit: McConnnell.senate.gov

Photo credit: McConnnell.senate.gov

by Rob Oldham

For the first time in six years, we have unified government. With Republicans in charge of the House and the Senate and with Donald Trump as President, the GOP is well-positioned to deliver on long-standing campaign promises such as repealing the Affordable Care Act, cutting the budget deficit, and rolling back Obama-era regulations.

However, there are a few barriers in front of the Republican government. One is internal dissent in Congress. Not many Republicans ran on the same platform as Trump, differing on key issues like entitlement reform, infrastructure spending, immigration, and foreign policy. And it is unclear whether Republicans will be cohesive enough to pass major policies and have them signed by Trump.

But even if the GOP is united, it won’t be able to move most legislation. In a recent interview with Politico, Majority Leader Mitch McConnell seemed bullish on keeping in place the filibuster—the 60-vote threshold that the Senate requires to cut off debate on legislation and Supreme Court nominees—despite having only 52 Republicans in the Senate. Both parties have used the filibuster to block legislation that does not have the support of 60 senators, making it an effective supermajoritarian vote requirement. McConnell’s insistence on keeping the filibuster has irked both House Republicans (who are used to majoritarian rules) and President Trump.

Both point to the Democrats’ rollback of the filibuster when they were in the majority and suggest that Republicans do the same. In 2013, the Harry Reid-led Senate Democrats changed the Senate rules so that a simple majority of senators could vote to cut off debate (also known as “invoking cloture”) on executive branch nominees and lower-level federal judges. Reid did this by reinterpreting Senate Rule XXII, which outlines procedures for invoking cloture and provides for the 60-vote threshold. Without getting too far into the weeds, the Senate had failed to invoke cloture on the nomination of a federal judge and, after the members agreed to reconsider the cloture vote, Reid made a point of order that all nominations that were below the Supreme Court should be decided by majority vote. The presiding officer of the Senate ruled against Reid’s point of order. Reid appealed the ruling and the Senate voted to reverse the presiding officer’s decision, effectively creating a new standard for invoking cloture on most nominations.

Republicans will have their first chance to use the new cloture rule for Republican nominees as Trump’s executive branch picks come through. Rex Tillerson and Betsy DeVos, Trump’s controversial selections for Secretary of State and Secretary of Education, respectively, might have had trouble getting 60 votes in the past, but were confirmed under the new rule. Once Senate Republicans have seen how simple it is to advance their priorities without the filibuster, they may feel pressure to use Reid-like parliamentary procedures to lower the threshold for cloture on legislation and the Supreme Court.

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If McConnell sticks to his guns though and refuses to abolish the filibuster, Republicans still have another way they can push legislation through with their slim Senate majority. In the past, a process known as budget reconciliation has been used by the Senate to bypass the 60-vote cloture requirement and pass legislation with a majority vote. Reconciliation was used to pass massive cuts to domestic programs in 1981, the so-called Bush tax cuts in 2001 and 2003, and the Affordable Care Act in 2010.

Budget reconciliation starts when Congress passes a blueprint for the annual budget known as a “concurrent resolution on the budget.” The budget resolution is not an overly detailed document as it merely sets general numbers for discretionary spending, revenues, the deficit, and the public debt. It does not carry legal effect and is not submitted to the president for his approval or veto. The resolution is also not subject to the cloture rule in the Senate and can pass with a simple majority vote. Most importantly though, the resolution may contain instructions for certain congressional committees to report legislation that will “reconcile” federal law with the spending levels set by the budget resolution.

This is where things get interesting. The 2009-2010 legislative battle over the Affordable Care Act serves as a useful example. In April 2009, the House and Senate Democrats passed a budget resolution that included reconciliation instructions for healthcare reform. The resolution contained a section that called on certain standing committees to propose changes in healthcare law that would reduce the federal deficit. The 1974 Congressional Budget Act requires that reconciliation legislation affect the federal government’s bottom line of spending and revenues, so the proposed changes would have to have a budgetary impact. The resolution said the proposed changes had to be reported to the House Budget Committee by a certain date.

Including reconciliation instructions in the budget resolution did not turn too many heads though as the Senate Democrats had 60 members (enough to invoke cloture if they stuck together) and were part of a unified Democratic government. The House passed its version of the Affordable Care Act (a liberal bill that included a public option for purchasing health insurance) in November 2009 and the Senate passed its version (a more conservative bill as it had to win the votes of conservative Democrats Ben Nelson of Nebraska, Mary Landrieu of Louisiana, and Blanche Lincoln of Arkansas) in December. But before the two chambers could sort out their differences in conference committee, Republican Scott Brown won the seat of the late Ted Kennedy in a special election. Brown’s victory brought the Democrats down to 59 votes and would prevent them from invoking cloture on any compromise bill.

After a brief period of panic following the loss of the Kennedy seat, President Obama, House Speaker Nancy Pelosi, and Reid decided to resolve the differences between the House and Senate healthcare bills through budget reconciliation. Reconciliation legislation is privileged under the Congressional Budget Act and cannot be filibustered in the Senate, allowing the Senate Democrats to pass a reconciliation bill with just 50 votes. The House agreed to pass the Senate’s more conservative bill first (this bill would not have to face a filibuster again) and then both chambers were to pass the reconciliation bill that contained the compromises that Obama, Pelosi, and Reid negotiated. Together, the Senate bill and the reconciliation bill would form the Affordable Care Act.

The reconciliation process started in the House, where the standing committees reported legislation to the House Budget Committee. This reported healthcare legislation was supposed to reduce the federal deficit per the instructions in the budget resolution. The Budget Committee approved the reconciliation bill in March 2010 and sent the reconciliation bill to the House Rules Committee, where the compromises negotiated by Obama, Pelosi, and Reid were put in place. The reconciliation bill passed the full House in late March and was sent to the Senate. Even though it could not be filibustered in the Senate, the reconciliation bill faced an additional procedural hurdle: the Byrd rule.

Informally adopted in 1985 and codified in 1990, the Byrd rule (named after former Majority Leader Robert Byrd) requires reconciliation legislation to be consistent with the reconciliation instructions included in the budget resolution, which almost always means that the legislation must decrease federal spending or increase revenues. If a senator thinks that part of the reconciliation bill is extraneous (there are six definitions for “extraneous”), he or she may make a point of order against that part of the bill. The Byrd rule can be waived and the ruling of the Senate’s presiding officer sustaining a Byrd rule objection can be overturned. However, each requires 60 votes, which defeats the point of the using the budget reconciliation process to bypass the filibuster.

In the case of the Affordable Care Act, most of the important non-budgetary provisions (such as mandates on insurance companies, businesses, and individuals) were in the original Senate bill, which had already been signed by President Obama. These would not have been allowed in a reconciliation bill. There were a few successful Byrd rule points of order against the reconciliation legislation, but nothing that significantly impacted the final product. The reconciliation bill was slightly changed by the Byrd rule though, so after it passed the Senate with 56 votes, it was sent back to the House, which agreed to the amendments and sent it to President Obama’s desk.

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Returning to the present, McConnell has said the Senate will use the budget reconciliation process to repeal the Affordable Care Act. The budget resolution that has already passed the House and the Senate contains instructions that allow for reconciliation legislation to repeal the healthcare law.  Senate Republicans successfully tested this tactic in 2015 when it sent a repeal through reconciliation to the White House where President Obama vetoed it. McConnell has also said reconciliation will be used to pursue tax reform. If Republicans stick together, there is little that Democrats can do to oppose them.

Still, the Affordable Care Act example shows that budget reconciliation is a limited process and requires considerable forward planning when passing the budget resolution. Moreover, thanks to the 60-vote requirement to overturn the Byrd rule, it cannot be used to pass laws that have no budgetary impact or defy the original budget resolution. Republicans will still need 60 votes to pursue most of their social policy goals.

The pressure will certainly be strong for McConnell to do away with the filibuster as Reid did in 2013. If he resists, expect to see more from President Trump in the way of executive orders, campaigning against Senate Democrats (ten 2018 races feature incumbent Democrats from states Trump won), and possibly bringing back his attacks on establishment Republicans who defy him. Opinions are split on whether American political institutions will withstand Trump and his anti-Washington political movement. Supermajoritarian rules in the Senate will likely be among the first that are put to the test.

Will the Senate further curtail the filibuster? It is hard to say. McConnell has proven to be an institutionalist thus far, but pressure from the Republican base and the administration may lead him to roll back the filibuster. Reforming the rules as Reid did would still require a majority of senators though, so McConnell would have to convince at least 49 of his colleagues to join him. Republicans Susan Collins, Lindsey Graham, and Susan Collins have fought to preserve the filibuster before and McConnell might also face resistance from Trump foes Jeff Flake and Ben Sasse. All of which means 2017 will prove to be a very interesting year. 

Rob Oldham is a political writer interested in legislative politics at the state and national levels.