President Trump brings an outsider's perspective to the long debate over the Senate filibuster. An overwhelming majority of the Senate disagrees with his desire to kill the filibuster, which means he doesn't have a prayer of winning. But he's not entirely wrong, either.
Set aside Trump's sledgehammer tweets directed at Majority Leader Mitch McConnell. In private conversations, Trump has made a reasonable and sophisticated case against the filibuster. Not only has the filibuster been eliminated for appointments, Trump has noted, it has also been eliminated (through the process of reconciliation) for some of the most important things the Senate does — that is, the budget and related bills it passes each year. So now, after all those changes, what remains of the filibuster is somehow supposed to be sacred and can never be changed again?
Trump's question not only recognizes the reality of former Majority Leader's Harry Reid's nuclear-option destruction of the filibuster for appointments, and McConnell's extension of that to Supreme Court nominations — it also takes into account the reality of reconciliation, by which, a generation ago, the Senate killed the filibuster for budget-related bills. The rule allows those measures to pass on a simple majority vote.
In other words, the filibuster has been steadily whittled down — by the Senate itself, of course, and not by a headstrong president — so why can't the Senate do it again?
Trump doesn't have the slightest chance, of course. In May, when the president called for an end to the filibuster, McConnell said, "There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar. And that will not happen."
"It would fundamentally change the way the Senate has worked for a very long time," McConnell added. "We're not going to do that."
In return, Trump has railed against McConnell and Senate tradition. On Friday, the president tweeted, "If Senate Republicans don't get rid of the Filibuster Rule and go to a 51% majority, few bills will be passed. 8 Dems control the Senate!"
Two days earlier, Trump tweeted, "If Republican Senate doesn't get rid of the Filibuster Rule & go to a simple majority, which the Dems would do, they are just wasting time!"
A month earlier, Trump tweeted, "The very outdated filibuster rule must go. Budget reconciliation is killing Rs in the Senate. Mitch M, go to 51 votes NOW and WIN. IT'S TIME!"
Earlier, on May 1, as the effort to repeal and replace Obamacare sputtered on Capitol Hill, Trump made a calmer argument to Fox News:
It's an archaic system. You look at the rules of the Senate, even the rules of the House — but the rules of the Senate and some of the things you have to go through, it's really a bad thing for the country, in my opinion. There are archaic rules, and maybe at some point we're going to have to take those rules on, because, for the good of the nation, things are going to have to be different. You can't go through a process like this. It's not fair. It forces you to make bad decisions. I mean, you're really forced into doing things that you would normally not do except for these archaic rules.
It would be an understatement to say McConnell is not convinced, and he has essentially ended the discussion with his over-my-dead-body pronouncements.
One of the problems in the Trump-McConnell relationship is Trump tends to treat leaders in Congress as if they are his employees, instead of leaders elected on their own and not beholden to the president. Plus, Congress is not only a separate branch of government, it is the first branch of government; a united Congress can remove the president, while it doesn't work the other way around. Nevertheless, Trump whacks away at some of the lawmakers he will need to pass his agenda.
One point heard often in the debate is that Trump can rail all he wants about the filibuster, but the real problem is that he couldn't get 50 Republicans to vote with him on Obamacare, and changing the filibuster rules wouldn't change the result.
That's probably not entirely accurate.
The House had to craft its bill specifically to accommodate the Senate's reconciliation requirements — meaning it was shaped by the filibuster. The Senate had to craft its bill with the same considerations. Senate drafters had to leave provisions that might have gotten 50-plus votes out of the bill in order to stay within reconciliation rules.
In short, the House and Senate bills were fundamentally shaped by the filibuster, and the filibuster was very much a part of Obamacare reform's defeat in the Senate.
Now, stonewalled by McConnell, Trump might look for a compromise that moves him closer to his goal. The president certainly shares the cause with the many Democrats who in the last decade have sought to limit and weaken the filibuster. Senators Dick Durbin, Sherrod Brown, Richard Blumenthal, Kristen Gillibrand, Ben Cardin, Al Franken, Mark Warner, Sheldon Whitehouse — and many others — all have supported changing the Senate's filibuster rules.
Of course, that was in 2011, when they held the majority in the Senate. But Trump could still try to appeal to them.
Indeed, short of fully eliminating the filibuster, there are things Trump could join with the anti-filibuster Democrats and perhaps some Republicans in attempting: getting rid of the 60-vote standard on motions to proceed, streamlining voting on procedural matters, and other initiatives. Of course, that's probably not possible, either; these days the filibuster-reforming Democrats seem to oppose everything Trump does. But if they refused to join him in making changes they supported just a few years ago, Trump could at least shine a light on their inconsistency.
And inconsistency — call it hypocrisy if you like — is always a factor when it comes to the filibuster. In late 2008, after Republicans lost everything in the election — House, Senate, White House — the former GOP Senator Fred Thompson offered his old colleagues a short course in the filibuster now that they were in the minority.
"They need to make sure they get this straight," Thompson said. "Up until now, filibusters have been a bad thing. Now, filibusters are a good thing."
Thompson spoke with a smile, but he was telling a fundamental truth about the filibuster. In the last 40 years, the Senate has changed hands more than the House. Veteran senators know that while they might be in the majority now, they could be in the minority next year. They know a lot of bad proposals might have become law had the filibuster not existed. So, many of them protect the filibuster whether they're in charge or not. That's the consistent, non-hypocritical position.
The president is an outsider who shares none of those concerns. But that doesn't mean he doesn't have a point. The Senate has changed its rules, including those on supermajorities, many times over the years. And in the future, it might change them again — in Trump's direction.