There’s been a lot of talk this year about rolling back the filibuster. I have written about it before, but to put it in a very simple way, removing the filibuster would be like removing the rule in kindergarten that kids need to walk in a line to go anywhere. It would mean chaos.
Snotty, sticky, squealy chaos.
However, a procedure that looks like this already exists. And, snotty, sticky, and squealy is just the start to what might happen if it is used to reinstate net neutrality.
Net neutrality is bad policy – which I have also written about in The Weekly Standard, Fox News, and here at the Washington Examiner – but that isn’t even the real issue this time. The issue is the Congressional Review Act. The Left and their Internet activists have started building their team and are getting very close to a vote. In fact, in December there were already 19 senators in support of using the CRA as a de-facto nuclear option to roll back President Trump’s competition-enhancing, Internet-restoring policy.
Because of the CRA, a mere 30 senatorial signatures – a micro-political-minority – can force a vote. And, to make matters worse, a mere simple majority is then needed to roll any rule backward. This is a recipe for really throwing the legislative process into disarray.
The Congressional Review Act, passed by a Republican Congress and signed into law by President Bill Clinton in 1996, allows 30 senators to bring a vote on a proposed rule to the Senate floor and a simple majority to stop the rule for being implemented.
In the Senate, once the resolution has been before committee for 20 calendar days, the panel is discharged if 30 Senators submit a petition for the purpose. Once the committee has reported or been discharged, a motion to proceed to consider the resolution would in practice be nondebatable, and the Act prohibits various other possible dilatory actions in relation to the motion and the resolution. Floor debate on the resolution is limited to 10 hours, and no amendment is in order.
Fortunately, while the Left is better at playing checkers than chess, they have enough leaders who understand the quid-pro-quo legislative battle that this would ignite. They also understand that left-leaning presidents prefer creating more new rules that right-leaning presidents. Therefore, hopefully, there is a truce. Because if this door (aggressive use of the CRA) is opened – it is going to be nearly impossible to close, and the people championing it now will someday come to rue it.
The beauty of the Senate is that it is collegial. Senators can’t just run off and do their own things – they need the support of their colleagues and ideally, they do as much as possible with “unanimous consent.” In a now famous episode on the Senate floor, Sen. Ted Cruz, R-Texas, had at one point made so many enemies that he couldn’t get anyone to provide him a second, effectively neutering the senator.
It is hard to get 60 ideological, type A, public personalities to agree on an idea. It takes compromise. It takes determination. And sometimes it takes a little luck. But, getting 30 of the 100 senators to agree on a policy is almost elementary.
I have cheered the use of the CRA in recent past – it was used effectively at the beginning of the Trump administration to roll back Obama administration policies that I didn’t support. But it was done by the majority at the time, so I didn’t think too much about it. I should have opposed it then. Given another chance I would have opposed its use. And, I did oppose the Obama administration’s use of the Budget Reconciliation process to pass Obamacare as well as the Republicans’ use of the same process to repeal it.
The right to filibuster is a way that the minority can obstruct the tyranny of the majority, or at least force the majority to win an argument by some other virtue than just being in the majority. That is important. But, just as important is that, in order to pass something, large majorities are needed. Just to move to a bill that isn’t privileged requires a 60-vote threshold – at least for the last few years. That is good for the Senate, and good for the country.
Both political sides of the aisle should reject the use of CRA in this way.
Charles Sauer (@CharlesSauer) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Market Institute and previously worked on Capitol Hill, for a governor, and for an academic think tank.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.
