The Case For Killing The Filibuster

Hugh Hewitt
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Posted: Feb 13, 2015 9:30 AM
The Case For Killing The Filibuster

Senate Democrats are using the filibuster to try and embarrass the GOP into backing down on the House's version of a funding bill for the Department of Homeland Security, a version which would roll back the president's unconstitutional unilateralism on immigration reform.

Congressional Republicans are trying to put on a show of unity, but the fissures are already evident. The demands from conservative activist leadership and the grassroots' legions for Senate Majority Leader Mitch McConnell to invoke "the Reid Rule" and smash what's left of the Senate filibuster using the same procedural maneuver that Harry Reid used to kill the filibuster for judicial nominees on November 21, 2013 are already loud and growing.

Without an alternative plan, the choice ahead for the GOP will be between (1) leaving DHS semi-shuttered for months once its money runs out on February 27, (2) folding and passing a stripped down bill which would be a complete victory for the Democrats (a victory which would also signal how every future funding battle will go), or (3) invoking "the Reid Rule" and clearing away the remnants of the filibuster in the Senate which apply to legislation and not nominees, thus setting up the direct confrontations with the president, confrontations which began with the Keystone XL Pipeline, and which would continue with the DHS appropriations bill and, without a filibuster to block them, repeal of all of Obamacare, followed by repeal of parts of Obamacare, other spending bills, entitlement reform etc. The president would veto most if not of these bill but the clarity provided by such continual collisions between the Congress and the Executive would be very useful indeed.

The president would be the one person deciding which parts of the government stayed open or shut down in the fall. The president would be vetoing or approving new Defense funding, new ship construction, new IRS reform laws. The president would have to consider a comprehensive immigration bill that included a long, strong, double-sided border fence and a Dream Act. Killing the filibuster opens up the legislative floodgates and pours the results on to the president's desk.

Killing off the filibuster and moving forward with an energized legislative agenda would probably also save at least two if not all four of the endangered GOP Senate seats of Kelly Ayotte in New Hampshire, Ron Johnson in Wisconsin, Mark Kirk in Illinois, and the Florida seat that will be left vacant by Marco Rubio's run for the presidency.

"What's more important, the Constitution or the filibuster?" is the rhetorical question being posed by key House conservatives led by the very able Raul Labrador. If you believe the president's actions on immigration are actually unconstitutional, then Labrador's framing is exactly right. Senate traditionalists will argue that the Senate is the Senate because of its 60 vote rule, but of course (1) there is no 60 vote rule in Madison's design, (2) Harry Reid smashed the 60 vote rule anyway and (3) the left has spent years pointing that out and many Senate Democrats are on record in favor of invoking the Reid Rule again and again to clear away the remains of the filibuster that Reid did not already wreck.

The prospect of an epic and continuing clash between a Republican Congress sending bill after bill over to the president on matters large and small and the president vetoing them all would set up a choice for the country on 2016 that is both fundamental and necessary. Senators recoil from losing their minority rights, but as former Missouri Senator Jim Talent said on my show Tuesday, the country needs a lot of legislation passed if it is to be righted, a lot of legislation that won't get 60 votes, so now may be the time to reform the Senate for the new millennium, and increase the speed of legislative action.

There is also the hard truth that the next time the Senate Democrats have the majority, they will almost certainly wipe away the remains of the filibuster. There has been large and growing agitation for just that among the left's "net roots" for some time. It will win eventually, so the GOP might actually want to get ahead of the curve just once.

The only palatable alternative course is for the GOP to get off its rear and use the Budget and reconciliation process in rapid fashion to both provide spending caps for the appropriations bills that follow and some legislation that is subject only to simple majority votes. With a Budget in place, appropriations bills other than and in addition to the DHS bill would get to the Senate and the framing of the weeks ahead would change completely. There is no "tradition" stopping the GOP from acting expeditiously, only a culture of lethargy and a calendar of "what we've always done" holding back the GOP on the Hill. House Budget Chair Price and senate Budget Chair Enzi could work over the next two weeks (and weekends) and get a budget together, to the floor and debated and passed thus clearing the way for other appropriations bills --crafted simultaneously by Chairman Hal Rogers' committee-- to march rapidly to the Senate where Senate Democrats will be faced with an array of rider-ridden spending bills, not just the DHS bill. Senate Democrats could say "no" to all of the spending bills via the filibuster but at least there would be more moving parts and opportunity for Leader McConnell to work the rules and the narrative in the GOP's favor.

Right now the Democrats like the gridlock, love the focus on one bill with the Dreamers at its core, and love the filibuster theses same Democrats busted 15 months ago. They like the framing of the dispute in the MSM, especially with the extreme anti-immigrant rhetoric at the center of the MSM-crafted narrative, not the president's unilateral law-making. Right now the GOP is falling into its accustomed formation of circular firing squad, and using its customary communications skills to alienate everyone. Right now the Senate majority won at such great cost in November is being imperiled and with it the presidential campaign of 2016.

Congressional Republicans apparently are hoping that Democrats are going to turn to Pete Carroll for their play calling between now and November, 2016, and that is a vain hope.

Republicans have to choose to go big or go home. They can go big in one of two ways: Smashing the remnants of the filibuster, or going into the no-huddle legislative offense and quickly passing a budget and then bill after bill after bill in very rapid fashion while allowing DHS to shut down and stay shut down. They need to tell their story through action, not speeches, and they need to start now.