The Senate just passed a big, bipartisan bill! And is now pretty much certain to pass no more big bipartisan bills for the remainder of Biden’s first term.
Which means that starting either now or when Senators get back from vacation in early September, the debate over the filibuster and voting rights is going to begin again in earnest. And when it does, Mitch McConnell will re-iterate a threat he’s been making for months: If Democrats get rid of the filibuster, he’ll grind the entire Senate to a halt.
I have no doubt Mitch McConnell would happily destroy the Senate to save his legacy of shredded campaign finance laws, a new era of voter suppression, and court-packing. But can he actually do that?
To find out, I spoke with Marty Paone, who some of you may remember from Democracy in One Book or Less. For decades, Marty was the Senate staffer Democrats went to if they needed to understand how Senate procedure works, and I think it’s safe to say he knows more about Senate rules than 99.9% of Americans.
Here’s an edited transcript of our interview. The short answer is that no, a “scorched-earth Senate” isn’t really doable. But Marty also had a lot to say on the best strategy for passing voting rights, the way the Senate’s changed since he worked there, and why he thinks a “talking filibuster” would backfire. \
I hope you’ll find the whole thing quite interesting - but let me know what you think. Do you want more of these kinds of interviews? Would you rather have political cartoons? I hope it’s the former, because I can’t draw.
Mitch McConnell has said that if Democrats get rid of the filibuster then there’s going to be hell to pay and the Senate is going to grind to a halt. Can he make good on that threat?
He could drag things out, but with a majority vote filibuster, if Democrats are willing to go there, it would take a little longer to get things done but they could do them without McConnell as long as they maintain their 50 votes plus the VP.
Procedurally, what would he be doing?
Mostly it would probably be objecting to the things you usually do by unanimous consent: morning business, allowing people to speak, recesses for lunch, setting cloture votes. You have a lot of cloture votes on nominations, but still a number of them get done by voice vote in “wrap up” at the end of the day.
Same thing with noncontroversial legislation. Some of that gets done by unanimous consent at the end of the day also. Sometimes it’s naming a post office or a veteran’s hospital or something like that, sometimes it’s doing substantial things.
But his members would be affected by those tactics also. If you’re not allowing people to speak then people on both sides don’t get to speak. Forcing votes discombobulates people on both sides because it’s one more vote they have to make, and they don’t like to miss votes.
And some of these laws that pass by voice vote at the end of the day are big laws that people from both parties have been working on for many years. They’re bipartisan, Republican items.
This scorched earth stuff sounds good but after a while they’d just go right back to business as usual.
McConnell’s issued his threat over the filibuster in general. Do you think he’d go scorched earth over a filibuster carveout for voting rights?
I don’t think so. I don’t think McConnell would blow the place up, because if he does that plays into the hands of people who could go to Manchin and Sinema and say “look we can’t get anything done unless we go ahead and change the filibuster for everything.”
Let’s talk more about that idea of a carveout in the filibuster for voting rights. Is that procedurally something that can be done?
Yes. [To do that you have to change the precedent in the Senate rules, and you do that by overturning the chair.] [Majority Leader] Reid did this in the fall of 2013. He made a point of order that cloture votes on nominations except for Supreme Court nominees should only require a majority vote. That was a very clear point of order so the chair ruled against him because that’s not what the rules stated. He overturned the chair and set the precedent going forward that to this day you have a majority vote cloture for nominations.
So now the Senate Parliamentarian will rule that this is the new precedent?
Once you’ve voted to overturn the chair when it’s made a correct ruling, that’s precedent going forward for how the Senate is going to act on that issue unless they undo it.
Could you also do this with reconciliation? If Democrats wanted to say the DREAM act survives the reconciliation rules even though the parliamentarian says it doesn’t, could they do that?
They can and they can’t. I’ll get into the can’t first. Reconciliation is dictated by the Budget Act and the budget act says it takes 60 votes to overturn the chair, rather than just a majority. So you can’t do it that way. But you can do it another way. You could put comprehensive immigration reform into reconciliation and somebody makes a point of order against it and the chair, maybe the VP, states the point of order is not well-taken, giving the parliamentarian the stiff-arm. The parliamentarian gives advice but she does not rule. The chair does not have to agree with her decision.
So a majority of the Senate can stick anything in reconciliation if they really want to. And a majority of the Senate can carve out an exception to the filibuster if they really want to.
Yes. A majority of the Senate has always been able to overturn the chair, they just have chosen not to. I think eventually they will put the filibuster on the same footing for nominations- not getting rid of it - a majority vote. You can still filibuster, make them file cloture, wait the two days, but then the cloture vote is a majority vote.
I keep coming back to this, the filibuster feels like saying, “We’re going to padlock this legislation, but also the majority has a key.” They could open it up if they ever want to.
You’re dealing with stockholm syndrome amongst a lot of Democrats. They don’t want to unleash this because “God, what will happen if Republicans take power?” That’s the big threat McConnell waves at them. “We’ll undo all of this.”
So if we’re going to do this, we should at least put ourselves in a position so it’s not that easy for the Republicans to undo everything good we’ve done. And maybe one way to do that is to have four more senators: two from DC, two from Puerto Rico.
Do you feel that the main concern is this issue of what happens when the tables are turned?
Yes. When I was up there I was in the same mindset for a long time. Now, they’ve all adopted this Newt Gingrich mindset of “Don’t let them pass anything. We’ll run on their ineptitude and we’ll be able to take over.” The irony is that Republicans can do their stuff with just a majority, because what they want to do is just tax cuts and changing spending and they can do that with a majority vote using reconciliation. As they showed under Trump. And they can put in judges with a majority vote.
At the same time, when we were in the minority, we used to have Democrats when we were filibustering things, they would come up to me and ask “Why are we doing this? Why don’t we let them enact these laws? Let the country get a good dose of Republican legislation. If they do take over and they have a majority vote cloture and they enact some crap, the people will get the feeling. We’ll always be a year and a half away from another election.
The caveat to that is that they can also change the voting laws in ways where it might not matter if people don’t like what they’re doing.
Given everything that states are doing to narrow the right to vote, If you don’t act then you may be setting up a perpetual cycle of being in the minority because of what the states have done. That argues for going ahead and doing it at the federal level.
Let’s talk about some ways to change the rules, other than a carveout. What about a talking filibuster? Or something where you need 41 votes to sustain?
I don’t think it would be worth changing the filibuster for that because you’d still be able to stop everything with 41. Same with a talking filibuster. They’ll just take turns.
But wouldn’t a talking filibuster might help some popular things pass? At least it’d focus attention on why stuff isn’t getting done.
You’re assuming the debate would actually be a real debate that it would matter. I don’t think it would. They’ll so stage manage what they say on how evil this bill is, how it’s a power grab by the Democrats, I mean if you can’t convince people that it’s in their own interest to get a vaccine, if you can use misinformation to poison their minds, you can easily get them to think that a voting rights bill is nothing but a power grab for these liberal in these cities to try to take over.
I guess maybe somehow I managed to not be cynical enough about the current Senate.
You can’t be too skeptical about it. Believe me.