Perhaps one of the most remarkable aspects of the showdown in the Senate this week was the lack of any visibly organized compromise effort. In 2005, when the upper chamber headed for a similar showdown over filibusters on judicial confirmations, a bipartisan group of 14 Senators led by John McCain imposed a compromise. It seemed likely that another “gang” would be formed this time too, which made McCain’s announcement on April 3rd that he would vote in favor of the Reid Option on Supreme Court confirmation votes a shock.
So what happened? As it turns out, there was another “gang” effort launched in the final two weeks before the vote, but it flopped — mainly because neither side could trust the other. Politico’s Burgess Everett and Seung Min Kim unraveled the final days of the Gangs of the US Senate:
A week before Republicans gutted the filibuster to put Neil Gorsuch on the Supreme Court, nine senators gathered in John McCain’s office to see whether they could save the Senate from spiraling further into disrepair.
In the room were centrists like Sens. Chris Coons (D-Del.) and Susan Collins (R-Maine), who spearheaded the effort to recruit enough senators to avoid the collision course their party leaders were on, as well as some lawmakers who had distanced themselves from such talks but were willing to listen, such as Sen. Bob Corker (R-Tenn.). …
The second-term senator circulated a proposal calling on senators in both parties to admit they’d abused the Senate rules to the detriment of the institution — and commit to not do so again in the future. It was designed to be painful and cathartic: Republicans would express regret for blocking Merrick Garland last year; Democrats would do the same for a 2013 rules change that set the stage for this year’s nuclear option.
If that seems equitable, it wasn’t enough for either side:
“They had a hard time trusting that we wouldn’t just filibuster the next nominee,” Coons said hours after giving up on a deal. “We had a hard time trusting that they wouldn’t just break the rules on the next nominee.”
Frankly, the numbers involved made it pretty clear that Republicans would have a hard time reassembling enough votes in this session to invoke the Reid Option again. Two factors seem most likely to have factored into the calculations of McCain, Susan Collins, and Bob Corker (among others) to go along with Mitch McConnell. The first was that Neil Gorsuch was an obviously qualified candidate for the Supreme Court, and the second was the Democrats’ rush to attack him personally despite his display of judicial temperament during the hearings.
Just ask Susan Collins:
The moderate Collins said she was bewildered by Democrats’ view of Gorsuch as extreme. “I don’t know how they could conclude that,” she said. “I truly don’t.”
It was clear that this was obstructionism for obstruction’s sake, which is why McCain and others bitterly consented to the precedent change on Thursday. Had Democrats waited for a second opening to launch this attack — and a more provocative nominee — McCain and Collins would not have likely consented to the Reid Option. Regardless of whether or not a “gang” could get formed, Democrats badly blundered on strategy and practically forced McCain and others into the change.
Now the Senate is clearly concerned about the legislative filibuster. Sixty-one members signed a letter to leadership urging them not to let that rule fall victim to partisan warfare:
Maine GOP Sen. Susan Collins and Delaware Democratic Sen. Chris Coons organized Friday’s bipartisan letter to Majority Leader Mitch McConnell and Minority Leader Chuck Schumer as a way to move past the bitter partisan debate on Supreme Court nominee Neil Gorsuch, who was confirmed earlier Friday.
Collins and Coons were among the moderate senators who had hoped, in vain, for a deal to allow Gorsuch’s confirmation without Republicans detonating the “nuclear option,” which unilaterally ended the 60-vote threshold for high court nominees but not for legislation.
“After the contentious and polarized debate of the past few weeks, I am hopeful that this letter indicates a new determination by a bipartisan group of more than 60 senators to move forward to solve the pressing problems facing our nation,” Collins said in a statement.
In the short run, a “gang of 61” can pretty much block anything from happening in the Senate, with or without leadership. McConnell has already said he would not do anything to weaken or eliminate the filibuster for legislation, saying “that’s what fundamentally changes the Senate.” Still, it’s difficult to see what happened this week as anything but a prelude to further erosion of the filibuster, especially with tough fights on appropriations, tax reform, and health care on the near horizon.
If Senators really want to save the filibuster, then they need to end its abuse — and the only way to do that is to make filibusters costly, in both political and personal terms. As I wrote Wednesday at The Week, it’s time to end the two-track system that produced the cheap and easily abused filibuster:
After a series of filibusters on civil-rights legislation created a freeze in Washington, D.C., the Senate adopted a “two-track” system for debate in 1964, which allowed failed cloture votes on their own as stand-ins for filibusters and Senate business to otherwise proceed normally. Rather than having an average of one filibuster attempt in each Congressional session as it was in the previous decade, the average had grown to 17 per Congress by the mid-1980s — and then 52 in the final congressional session of the George W. Bush administration.
The filibuster became “the tyranny of the minority,” U.S. News editor Robert Schlesinger wrote in 2010. “The filibuster is out of control. And it’s dangerous.” …
Used judiciously, the filibuster has the power to rein in an extreme majority, and embarrass it by directing public attention to potential abuses. Now, however, the filibuster itself is the abuse. The shameful treatment of Neil Gorsuch and the personal attacks launched on a distinguished member of the appellate court for political purposes may be the nadir of this “tradition,” even if it is the all-too-predictable result of the judiciary wars waged by both parties in the Senate and on the campaign trail.
If traditionalists fear the end of the filibuster on this week’s so-called “nuclear option” vote, then they have a solution. Put an end to the two-track system and force senators into continuous debate to filibuster a bill or a nominee. Make a filibuster the end of all normal business in the Senate until the filibuster is resolved. The cheap nature of the modern filibuster invites abuse, and that leaves only two real options for a system based on majority governance — either get rid of it, or make it so costly that few will abuse it for long.
To put it more bluntly: Stop writing letters and forming “gangs,” and work to make the filibuster worth saving. If the Senate can’t accomplish that much and fix the problems they’ve created for themselves, then their supposed distinctiveness isn’t worth preserving at all.