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Senate Republicans Defend Filibuster as They Prepare for One-party Rule

  • Michael Bowman

FILE - The sun rises over the U.S. Capitol in Washington, Sept. 24, 2013.

FILE - The sun rises over the U.S. Capitol in Washington, Sept. 24, 2013.

Senate Republicans are eager to flex their party's newfound political muscle next year, but say they have no plans to weaken rules enabling Democrats to block major legislation and, potentially, any Supreme Court nomination put forth by soon-to-be President Donald Trump.

Whether Republicans adhere to their promise of restraint will determine the fate of the filibuster, which checks the power of the majority by making some degree of minority support necessary for most bills to pass the Senate and for high court nominees to be confirmed.

For now, Republicans are defending the filibuster as they plan a busy legislative agenda for the first 100 days of the Trump administration — an agenda they know will prompt fierce Democratic resistance on some items.

FILE - Sen. Thom Tillis, R-N.C., is shown on Capitol Hill in Washington, D.C., Jan. 28, 2015.

FILE - Sen. Thom Tillis, R-N.C., is shown on Capitol Hill in Washington, D.C., Jan. 28, 2015.

"We have not changed the rules in the Senate, should not change the rules in the Senate," Republican Senator Thom Tillis of North Carolina told VOA. "There's a reason why we're a distinct institution."

"I would not like to turn this Senate into the House any more than we have done," said South Carolina Republican Lindsey Graham, referring to the fact that, in the House of Representatives, all legislation is passed by simple majority votes.

Senator Jeff Flake of Arizona said the filibuster "is what makes the Senate the Senate. And I know a number of my [fellow Republican] colleagues feel the same way."

‘Last legislative check’

The filibuster requires at least 60 of the Senate's 100 members to vote affirmatively for the chamber to take up a bill or nomination, and similar three-fifths backing to end debate and hold a final vote. It can be sidestepped if senators grant unanimous consent to advance a bill, or if a party has at least a 60-vote majority in the chamber — a rarity in modern times.

Senators of both parties have long understood the filibuster's importance in America's system of checks and balances on political power.

FILE - Sen. Ted Cruz, R-Texas, is seen on a television in the Senate Press Gallery as he speaks during the seventh hour of his filibuster on the Senate floor at the U.S. Capitol in Washington, D.C., Sept. 24, 2013.

FILE - Sen. Ted Cruz, R-Texas, is seen on a television in the Senate Press Gallery as he speaks during the seventh hour of his filibuster on the Senate floor at the U.S. Capitol in Washington, D.C., Sept. 24, 2013.

"If the right of free and open debate is taken away from the minority party, then the millions of Americans who ask us to be their voice [will be silenced]," said Barack Obama in 2005, when he represented Illinois in the Senate.

In 2012, then-Minority Leader Mitch McConnell, a Kentucky Republican, described the filibuster as "the last legislative check against the kind of raw exercise of power majority parties always have been tempted to wield."

Filibusters were never used more than 10 times a year prior to the 1970s. They regularly have exceeded 100 per year during the Obama administration, sometimes to block legislation with significant public support, like stiffer gun laws, but most often to block presidential nominations of judges and members of his administration.

New Senate rules

In 2013, frustrated by persistent Republican filibustering of Obama's nominees, then-majority Democrats changed Senate rules so that only Supreme Court nominations could be blocked. Republicans were outraged.

John Cornyn of Texas warned of setting "a new precedent in the Senate — one that says it's permissible to break the rules of the Senate at any point to get your own way if the majority has the gumption to do it."

Democrats made a similar point years earlier, when then-majority Republicans threatened to rein in the filibuster during the George W. Bush administration.

FILE - Sen. Chuck Schumer is surrounded by reporters at the Capitol in Washington, D.C., July 29, 2014.

FILE - Sen. Chuck Schumer is surrounded by reporters at the Capitol in Washington, D.C., July 29, 2014.

"They [Republicans] want their way every single time, and they will change the rules, break the rules, misread the Constitution so that they will get their way," said Senator Chuck Schumer of New York in 2005. "The checks and balances say that if you get 51 percent of the vote, you don't get your way 100 percent of the time."

"Majorities are fleeting," Cornyn warned Democrats in 2013. "The shoe will be on the other foot."

Indeed, Senate control flipped to Republicans in elections the following year. It is in the context of more than a decade of partisan warfare over the filibuster that Republicans must decide how to proceed next year, mindful that Democrats could pursue all-out obstruction against Trump's agenda much the way they frustrated Obama's agenda at nearly every turn.

Fury over Supreme Court seat

The fury could be fiercest when Trump makes a Supreme Court nomination to fill the seat of Justice Antonin Scalia, who died in February. The filibuster remains in order for high court picks, and Democrats continue to seethe over the Republicans' refusal to consider Obama's choice, Judge Merrick Garland.

FILE - Protesters with We Need Nine, a group calling for the U.S. Senate to allow President Barack Obama to nominate a ninth Supreme Court justice, display their signs in front of the Supreme Court in Washington, D.C., Oct. 4, 2016.

FILE - Protesters with We Need Nine, a group calling for the U.S. Senate to allow President Barack Obama to nominate a ninth Supreme Court justice, display their signs in front of the Supreme Court in Washington, D.C., Oct. 4, 2016.

"They [Republicans] stole that Supreme Court seat," Ohio Democrat Sherrod Brown told VOA. "They owe an up-or-down vote on Merrick Garland. To me, it's first about that."

Brown and other Democrats refuse to say whether they intend to retaliate against Trump's eventual pick for the high court vacancy. Republicans who fiercely defend the filibuster, however, say all bets are off if Democrats block a qualified nominee next year.

"They [Democrats] set the standard [for limiting the filibuster]," said Utah Republican Orrin Hatch. "They really screwed up the rules, frankly, for purely political purposes. Republicans are not limited now. They can do whatever they think is in the best interests of the country."

Hatch added that he hopes a filibuster showdown can be avoided.

"I suspect Republicans will show more reverence for the rules than the Democrats [did when they were in the majority]," the senator said.

Delaware Democrat Chris Coons told VOA that the 2013 rules change on the filibuster "was a pretty drastic step," but one necessitated by "years of repeated refusal to allow the Obama administration to nominate and confirm qualified judges, senior members of the administration."

For months, Coons consistently rejected any suggestion that Democrats adopt a scorched-earth policy in the Senate to protest Republican inaction over Garland. His moderation continues now. At a time when Democrats are in the minority and bracing for one-party Republican rule of Washington, the senator is urging restraint across the political spectrum and respect for the filibuster.

When it comes to the whims of the majority, Coons said, "there is some need for a speed bump or even, on occasion, an emergency brake."

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