Theoretically, the Senate’s filibuster rule could serve as one of only two tools the Democrats have to limit the scope of the complete Republican takeover of government. But it doesn’t look like the filibuster will be worth a warm bucket of spit, assuming it survives at all. It has already been substantially weakened by Harry Reid who got fed up with the Republicans’ constant stonewalling of executive branch nominees and appointments to the lower federal courts. He eliminated its use for those two purposes, which means that Trump can fill his cabinet with virtually anyone he wants and make quick work of rolling back the partisan advantage President Obama built on the district and appeals courts. However, Harry Reid left in place the filibuster for Supreme Court nominees and for regular Senate legislative business. For this reason, there still could be some necessity for Trump to reach across the aisle to fill Scalia’s seat on the Supreme Court and to enact his ambitious and radical policy agenda through Congress.
However, the Democrats know that the Republicans will only tolerate a limited amount of obstruction and that they could easily eliminate the filibuster completely, making a simple 50 votes in the Senate all the Republicans need for all Senate business.
Senate Majority Leader Mitch McConnell wouldn’t comment on this possibility but he had a pretty straightforward warning on Friday, saying that Democrats are “going to want to be cooperative with us.”
The Senate Democrats aren’t inclined to behave as obstructively as McConnell’s Republicans in any case:
“What we’re not going to do is what Mitch McConnell stands for, which is obstructing things because of who proposed it,” said Sen. Jeff Merkley (D-Ore.), a prominent liberal. But “if Trump puts plans forward that aren’t about working Americans, if it’s tax cuts for billionaires, we’ll certainly fight that.”
I suppose the Democrats shouldn’t invite McConnell to take away their last remaining parliamentary tool for resisting Trump, but if they’re afraid to use it because they believe it will be taken away, no one should expect it to be used for anything of true priority and significance to the Trump administration. It will be useless for the big stuff.
But there is an effective way to resist, and that’s by exploiting divisions within the Republican caucus. Those divisions are substantial and it’s going to take a lot of creativity and horse trading to utilize them effectively. Trump wants an infrastructure bill, and he’ll probably need Democratic votes to get it. He’s going to want to do tax reform, and he may need Democratic votes to get that, too. It’s unclear if he can avoid running afoul of the deficit hawks in the Republican Party (in both the Senate and House) as he looks to explode the deficit in nearly every area from increased defense spending, to lowering rates and repealing the Estate Tax, to eliminating the cost savings in ObamaCare, to jacking up spending on immigration enforcement and wall building.
Instead of relying on a filibuster rule that will be taken away the moment it matters, the Democrats should stand on their principles rather than pretending that they can keep a meaningful filibuster by playing nice. If they’re going to be a successful minority party, they’re going to have to do it the old-fashioned way. And that means that they’ll have to use the amendment process to sow divisions and make Trump rely on them as much as possible.
It should become clear fairly quickly if Trump can govern his own caucus any better than Boehner and Ryan have been able to do. The Republicans can barely legislate their way out of a paper bag on a good day, and now they have a president coming in who, by all reports, has the attention span of a gnat and no knowledge whatsoever of how to run the federal government or to move legislation through Congress.
If Trump wants to steamroll the Democrats with some hard right conservative agenda then they can refuse to help ease the divisions in his party even on things like infrastructure and tax reform where they might otherwise be willing to give him a win.
And those days of giving the votes to raise the debt ceiling? Well, that’s a Sword of Damocles that shouldn’t be given up easily. The Republicans will have to pass their own appropriations bill with their own votes, and if they can’t do it any better under Trump than they did it under Obama, well then that will be another way for Democrats to have influence and force moderation and compromise.
In any case, it’s true that the loss of the filibuster shouldn’t be conceded or made any less painful to execute. But playing nice just to preserve it will only get the Democrats rolled.