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The beginning of the end of the legislative filibuster? The unintended consequence of Blunt-Lankford rule change

Majority Leader Mitch McConnell set up debate this week to limit post-cloture time to two hours on judicial and executive branch nominees (except agency heads and Supreme Court nominations). But while it is being sold as a minor tweak to post-cloture debate, the consequences of this are huge. In particular, it directly threatens the existence of unlimited debate in the Senate.

Procedurally, the House and Senate could not be more different. The House is subject to absolute majority rule. Conversely, the Senate is governed by more bipartisan processes like unlimited debate, supermajority cloture, and unanimous consent.

Like the Senate, the House is bound by a set of rules. And like the Senate, House procedure is, in reality, defined by agreements to ignore its rules. The Senate fashions unanimous consent agreements to structure debate. Any individual senator could have a dramatic effect on its daily operations. The House accomplishes the same feat but through a less inclusive process. Whether through “suspension of the rules” (which allows 40 minutes of debate and passage with two-thirds vote) or through a “special rule” from the Rules Committee (a simple resolution passed by a majority that sets terms for length of debate, amending process, and rule waivers), the House sets aside its rules to pass legislation. Regular order in the modern House has come to mean regularly ignoring its rules.

This was not always commonplace. The House worked legislation through its standing rules for long stretches of its history. But in the early 1880s that began to change. The minority had grown extremely adept at delaying tactics. Motions, roll calls, disappearing quorums, and more were all commonly used to obstruct the House from doing business. These motions and tactics were eventually enough to effectively create a filibuster in the House, though no right to unlimited debate was recognized there as it was in the Senate.

This obstruction sparked a controversial move in 1882. Democrats wanted to stop the consideration of Joseph Wheeler’s election case. Wheeler, a Democrat, had challenged the results of the election in 1880 and won after a judge invalidated 600 votes for his opponent, William Lowe. However, after a recount, the House took up the case on May 29 with the intent to supplant Wheeler with Lowe, a Greenback. Democrats did not want to consider the case and used every conceivable tactic to delay.

Mid-debate, Rep. Thomas Brackett Reed (R-ME) reported a resolution from the Rules Committee limiting motions to a single motion to adjourn involving election cases. Effectively, it was a resolution to change the rules, limiting motions available to members, by a simple majority. In practice, it was the first special rule reported by the Rules Committee. Democrats fervently objected but Reed’s move was upheld by the Speaker and the House, creating a precedent that eventually grew into common practice. In the months after the resolution, the House issued its first special rule on legislation, limiting debate on the Mongrel Tariff on the last day of Congress in 1883. A few years later, special orders in the House were used to schedule almost two weeks of debate. What began as a minor rule change later transformed debate on major bills in the House.

This history is relevant to the Senate’s consideration of its rule change. Majority Leader McConnell will soon forward a simple resolution, authored by Senators Roy Blunt (R-MO) and James Lankford (R-OK), to change the rules to limit post-cloture debate to two hours on nominees (except cabinet and Supreme Court nominations). Passing this rules change will likely require a nuclear trigger. If McConnell cannot get enough Democrats to cut off debate via cloture, he will establish a precedent that cloture may be invoked by a simple majority to change the rules. Meaning, a majority can change Senate rules via a simple resolution. If this is starting to sound like the Wheeler elections case in 1882, it should.

While the rule change itself is relatively small, the consequences of this maneuver could be transformative. McConnell is using a legislative vehicle to change Senate rules outside of the normal two-thirds required. Creating a precedent privileging simple resolutions to change the rules mimics the House development limiting debate in the early 1880s. Functionally, McConnell’s precedent would create a special rule process in the Senate. And if passed, it could mark the beginning of the end of the legislative filibuster.

This is not likely how many observers expected the legislative filibuster to be destroyed. Many observers have anticipated a dramatic procedural standoff on the Senate floor. But this change is actually much more convenient. Rather than a dramatic procedural standoff, the Senate will create a process that makes the filibuster and Rule XXII irrelevant, in the same way that House rules are broadly irrelevant to that chamber’s proceedings. The cloture rule will still be on the books, it will simply be ignored by a majority whenever it wants to pass a bill.

The unintended consequence of this maneuver puts the Senate on a path toward majoritarianism. And while it may not look like much now, if history is a guide this marks a significant step toward a filibusterless Senate.

 

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Topics: Legislative Procedure