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The Filibuster’s Days May Be Numbered

Mitch McConnell's repeated use of the nuclear option may kill off the Senate tradition.

The filibuster may be dying the death of a thousand cuts.

After Majority Leader Harry Reid implemented the nuclear option to eliminate the filibuster for cabinet appointees and judicial nominees below the Supreme Court in 2013, Mitch McConnell, leader of the Republican minority at the time, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”

McConnell’s warning was prescient. It was only four years later that Republicans used Reid’s rules to confirm Donald Trump’s cabinet. Then McConnell dropped his own nuke and removed the filibuster for Supreme Court nominees, allowing Republicans to confirm Neal Gorsuch and Brett Kavanaugh over Democratic objections. Now McConnell is about to go nuclear again.

American military strategists have long embraced a policy of no-first-use when it comes to nuclear weapons. The situation in the Senate is an example of why. Once one nuke is dropped, it becomes easier and easier for others to launch their own nuclear weapons at more and more targets. The first use of a nuclear weapon expands the Overton window to where usage of more nukes is acceptable.

NBC News reports that Mr. McConnell may drop his next nuke as early as today. Yesterday, in a party-line vote, the Senate rejected a change to rules that would have limited debate on cabinet appointees and district-level judicial nominees to two hours from the current 30. This would make it easier for the Senate to confirm more of President Trump’s judicial nominees. Even though the Senate required 60 votes to make the change, McConnell has the ability to use procedural tactics to make the change with only a simple majority.

Burgess Everett writes in Politico that each time the filibuster is weakened unilaterally by one party, it becomes more likely that the measure will eventually be totally eradicated. Already, members of both parties are claiming that the other wants to eliminate the filibuster so why not take pre-emptive steps and do it to their own advantage?

“If eliminating the legislative filibuster will serve Sen. McConnell’s purposes, he’ll eliminate it,” said Senate Minority Whip Dick Durbin (D-Ill.). “After what Sen. McConnell has done to this institution, there will be many people who will be putting pressure on us to do the same thing.”

“It’ll go down the road,” Senator Richard Shelby (R-Ala.) said. “If the Democrats take control of the Senate and we’re in a strong minority then they’ll change it immediately.”

President Trump has also made repeated calls to eliminate the filibuster. Mr. McConnell rebuffed those calls as recently as last June, but the majority leader’s repeated weakening of the filibuster whenever it is convenient may be dooming the Senate rule.

The argument against the filibuster is basically that Congress is too divided to compromise. Neither party has enough votes to force its will on the other without convincing a few senators to cross the aisle. While this division is frustrating to party activists, the voters who keep Congress decided seem to prefer stalemate to one-party rule.

Both sides will be to blame for killing the filibuster. Harry Reid uncorked the nuclear genie from his bottle but Republicans have taken the idea and run with it. If Republicans eliminate the filibuster, it will be the GOP that bears the brunt of voter anger for the change.

Regardless of who eventually pulls the trigger to finally eliminate the traditional safeguard for the Senate’s minority, the country will be worse off without the filibuster. The need for 60 votes to advance legislation acts as a speed brake to slow down bad bills. Without the restraining influence of the minority, a bevy of bad ideas could easily become law. National policy could veer wildly from one side of the political spectrum to the other.

While eliminating the filibuster would allow Republicans to fund President Trump’s wall and repeal Obamacare in the short-term, it is very likely that after the 2020 elections the situation will look very different. If Democrats win control of the Senate and the presidency while retaining the House of Representatives, the absence of the filibuster would allow them to defund the wall while, at the same time, passing a veritable liberal wish list that includes gun control, Medicaid-for-all, higher taxes, and who knows what else. Even with a large Republican minority, the Democrats would be unstoppable until after the next election.

It may already be too late to prevent the death of the filibuster, but Mitch McConnell and his Senate Republicans should think very carefully before further weakening the tradition. They may regret it if they do. And they may regret it a lot sooner than they think.

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