The fate of the filibuster to be decided soon

WASHINGTON — Senate Republicans are preparing to abolish the final vestige of power that the minority has to block presidential nominations, worrying many senators in both parties that the final and biggest domino — the power to filibuster legislation — will be next.

In recent years, as partisanship has escalated, the Senate has required a 60-vote majority for almost any controversial legislation to overcome a filibuster. Gone, for the most part, are bipartisan quorums that used to pass large and complex laws with simple majorities.

But as both parties have moved to do what was once unthinkable — eliminating the filibuster for judicial and Cabinet nominees, known as the nuclear option — senators are now forced to consider if the final step could be in the offing, one that would fundamentally alter the character of the Senate and make it indistinguishable from the House in a crucial way.

“Benjamin Franklin is somewhere turning over in his grave,” said Sen. John McCain, R-Ariz., who has been a key player in the efforts to preserve the filibuster. “Why have a bicameral system?”

While Democrats and Republicans have seen injury to the minority in losing the right to block nominees, both parties also understand the profound and lasting effect that a party with power unchecked by the minority could have when it comes to lawmaking. (The rationale behind the filibuster was that a 60-vote threshold meant that a broader consensus for the most contentious legislation would have to be reached.)

This is especially true now for Republicans in control over Washington who understand that the priority of Democrats tends to be increasing government programs that become very hard to end later, as demonstrated by the Republicans’ current inability to unravel the health care law, even with a majority in both chambers.

Without the current filibuster rule on legislation, Democrats, should they dominate Washington again one day, could seek a large increase in the minimum wage, increased Social Security benefits, paid family leave or Medicare for all. And they would need only a simple majority to do it.

Similarly, Republicans could pass large permanent tax cuts, oil drilling in the Arctic or a national concealed-carry gun law. Such power is something that President Donald Trump might see as quite delicious, and something that he may well push for if Republicans confirm Judge Neil M. Gorsuch for the Supreme Court without meaningful support from Democrats.

“There is not a single senator from the majority who thinks we ought to change the legislative filibuster,” said Sen. Mitch McConnell, R-Ky., the majority leader. He is expected to move this week to remove the 60-vote threshold to proceed with a vote on Gorsuch’s nomination. But, that, he insisted, would be the end of it.

But many Democrats said they were skeptical of the claim. “I have seen the process deteriorate,” said Sen. Benjamin Cardin, D-Md. “So do I believe Mitch McConnell would change the rules again? Yes.”

Of course, both parties are complicit in getting the Senate to this stage and have changed their positions relative to their status.

“Both parties have been on both sides of this issue, depending on whether they were in the majority,” said Donald Ritchie, a former Senate historian. “Bill Frist proposed it during the Bush years,” he said, referring to the former majority leader from Tennessee.

“Mitch McConnell supported it, and Harry Reid opposed it. When Harry Reid invoked the nuclear option, McConnell protested against it,” he said, “but when McConnell became majority leader, he did not act to overturn the precedent, and has been making much use of it in this Congress. It’s hard to say what the long-range impact will be, but majority leaders since George Mitchell have been protesting the almost routine filibustering of nominations, so maybe the process needs some resolution.”

Reid, the retired Nevada senator, moved to curtail the filibuster in 2013 when he removed the 60-vote threshold to advance confirmations of federal judicial nominees and executive-office appointments after Republicans repeatedly blocked President Barack Obama’s nominees to the U.S. Court of Appeals for the District of Columbia Circuit.

While Republicans were highly critical of Reid, the rule change has come in handy as they have moved to confirm a bevy of Trump’s Cabinet nominees, some of whom would almost certainly have been blocked if forced to face a 60-vote procedural threshold. Many Democrats at the time also saw the danger of the move.

“There has been an abuse of the 60-vote rule,” Cardin said. “I thought it when Reid did it, but there is a question of who struck first. What Republicans did with the D.C. Circuit was wrong, that was an abuse, but there is blame on both sides.”

Even so, experts on Senate rules say that a change on legislation is a bridge that neither party wants to cross.

“I would never deny that it was a significant moment,” said Martin Gold, a former senior staff member and an author of books on Senate procedures. “As was 2013. But I do not believe it has implications for legislation. No one will want to take steps to decapitate the legislative filibuster.”

But both sides have made the same claims about changes to rules concerning nominees, and many see the slope as getting more and more slippery.

Without the voice of the minority, they worry, legislation would fall prey to the extreme instincts of the base of both parties, as is often the case in the majority-rules House.

“That would dramatically change the character of the politics of America,” said Byron Dorgan, a former Democratic senator from North Dakota. “The filibuster is a set of brake pads of the speed of the passion of the moment. The Senate is the place where cooler heads prevail and you need a larger group of people to find common ground. It’s an unfortunate situation.”