Eroding the filibuster would come back to bite Republicans
The GOP won't always be in the majority. Members who want to erode protections might want to remember that.
When this Congress was sworn in, Senate Majority Leader John Thune drew a principled—and politically smart—red line: He said overriding the Senate parliamentarian would be “totally akin to killing the filibuster. We can’t go there.”
The Senate parliamentarian is the nonpartisan official who decides whether a bill is one of the very few pieces of legislation that can pass the Senate with a simple majority or whether it is like almost all others and requires 60 “yeses” to pass and can therefore be filibustered.
The founders intended for the Senate to operate differently from the House, where the simple majority rule generally applies. Sen. Lisa Murkowski (R-Alaska) put it well, agreeing with Thune: “If we’re not a body that is going to follow our own rules and the arbiter of our rules, which is our parliamentarian, then we really don’t have much left in terms of protections that distinguish this body from the House.”
In March, Sen. Thom Tillis (R-N.C.) also reinforced Thune’s position, saying, “That’s nuking the filibuster as far as I’m concerned. … That’s just ridiculous.”
The next month, Sen. John Curtis (R-Utah) also backed up listening to the parliamentarian: “A red line for me is removing the filibuster; another red line for me is overruling the parliamentarian.”
But short-sighted pressure is now being applied as other Senate Republicans, led by Senate Whip John Barrasso (R-Wyo.), argue that Thune’s red line should be crossed to undo a California state regulation.
If you’re surprised that some Republicans who normally defend the rights of state governments and who are all on record supporting the filibuster want to erode the filibuster just four months into their majority, you’re not alone.
We thought Senate Republicans understood the long game. But now they are on the verge of handing Democrats a blank check that would be used to gut Republicans’ top priorities when the shoe is on the other foot. (An outcome we would obviously build on if it came to pass through GOP foolishness.) To paraphrase Donald Trump, they’re about to make a terrible deal for their own interests.
The law some Senate Republicans want to exploit in this case, the Congressional Review Act, would give Democrats far more opportunities to advance their agenda than Republicans.
The Congressional Review Act law lets Congress undo some policies, and it is most often used after a change in administrations. The parliamentarian has ruled that the Senate cannot undo a California policy regulating gas-powered cars by using the Congressional Review Act, meaning senators must be permitted to filibuster.
In their rush to end one regulation in a single state, Senate Republicans would be setting a new precedent: that, contra Thune, Murkowski, Tillis, and Curtis, whoever temporarily holds the Senate majority should be able to ignore the parliamentarian.
If that were to happen, the Congressional Review Act would allow Democrats to go wild on a host of areas that Republicans care a great deal about, including oil and gas leases, natural gas exports, corporate mergers, Securities and Exchange Commission enforcement decisions, and on and on.
As we laid out, according to multiple Senate Republicans, overruling the parliamentarian would amount to killing the filibuster. It would also be a procedural windfall for the left.
How much is the filibuster really worth to some Senate Republicans? They should think very carefully before they, in cause of a minor, short-term win, tear open a Pandora’s box that would be a long-term bonanza for progressive Democrats.
This is a good time for Barrasso to revisit a Senate floor speech he gave in 2021, “We must preserve the filibuster”: “We protected the rights of the minority. And we put country before party. If Democrats won't stop the power grab for the good of the country, then they should at least do it for their own good.”
Norman Eisen is publisher of The Contrarian. Lisa Gilbert is co-president of Public Citizen.
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“We protected the rights of the minority. And we put country before party. If Democrats won't stop the power grab for the good of the country, then they should at least do it for their own good.”
I think the heart of the matter is that Republicans are convinced they can cling to power by ensuring we do not have free and fair elections. A combination of voter suppression techniques, extreme gerrymandering and outright election fraud will be used to try to hold the Senate. They are not worried about future repercussions because they are convinced they cannot be voted out of office, particularly in the Senate. Whether their arrogance is justified, time will tell, but I think the only credible explanation for their total disregard of their own constituents, as well as the Constitution and Senate rules, is their belief they cannot be defeated. It's a dark outlook, but I think it provides insight into their behavior.
The assumption of this piece is that Republicans will allow free and fair elections, thus putting their majority at risk. I think it's fair to say at this point that that is not a given.