7

I keep seeing headlines about how excited the current Republican majority is to pass all the legislation they ever wanted now that they have control of the House, Senate, and Executive office.

But given that a vote for cloture, to end a filibuster, takes 60 votes, which would require Democratic/Independent support, what reason does the majority have for excitement? Won't all their bills die in the Senate if the minority wishes it?

Am I missing something?

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    The title is about liberals and conservatives, while the question text is about Republicans and Democrats. That's a bit confusing. There are liberals and conservatives in both parties. – indigochild Jan 26 '17 at 15:25
  • That's true. I'm sorry, I tend to think of them as synonyms. – temporary_user_name Jan 26 '17 at 22:53
  • @indigochild that's not really true. There are conservative liberals, and liberal conservatives, but broadly speaking, they are acceptable synonyms. That said, the question really isn't about any particular party. The question has to do with senate rules in general. – user1530 Nov 21 '17 at 20:31
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    @blip We should strive for clarity. The reasons why liberals or conservatives would feel a certain way may be different than the reason a Democrat or Republican would feel a certain way. – indigochild Nov 21 '17 at 21:10
10

There are several reasons for this.

Nuclear Option

Basically, there is nothing stopping the Republican party from removing the 60 vote cloture and then passing everything with the 52 person majority they have. That's not a perfect solution - it would only take 2 dissenters for them to lose a vote but for issues the GOP is united on, it would work fine. Additionally, were the Democrats ever to get united control of the government, they could use this to do whatever they wish. This is why the Democrats didn't do this back when they controlled Congress.

Budget Reconciliation

Additionally, there is a process called budget reconciliation. This process was originally used to help control the national debt but it provides powers beyond that. The mechanics aren't relevant to this answer but it basically allows the majority party to fund or defund part of the government with only a simple majority. This is different from creating law. The GOP majority cannot use this to make a border wall part of federal statute. However, they could use this to defund the Affordable Care Act or take out the funding from other programs. This isn't equivalent to repeal - the original law will still be around, it just won't have the money needed to accomplish its goal.

Executive Orders

President Obama is routinely acknowledged as one of the most impactful Presidents in US history (whether that impact was good/bad is another question) and he only had full control of Congress for 2 years and had zero control of Congress for another 2. However, he was able to create a great deal of change through executive orders. President Trump is entirely free to get rid of these orders and replace them with his own.

Staffing

While all government agencies have statutory obligations (the Department of Justice can't just not enforce the Civil Rights Act, for instance), they get a great deal of flexibility in how they enforce the law. Right now, government agencies routinely ignore minor violations of the law in favor of prosecuting major violations. There is nothing stopping an Attorney General Sessions (for example) from declining to file suit over an act of discrimination. This power isn't unlimited: particularly egregious violations of the law must be prosecuted. On less clear-cut cases though, there is a lot more discretion given to government officials.

4

In October of 2011, Harry Reid trigger the Nuclear Option. In short, he was able to push through the confirmation of a number of federal judges with a simple majority without threat of filibuster. No vote for cloture was required. While the scope of the Nuclear Option was relatively limited (only federal judge appointments I believe), there is nothing stopping it from being expanded upon by the current majority power.

Moreover, expansion of the nuclear option may not be required. The Republicans already have 52 seats at the moment, giving them a safe buffer in case someone breaks party lines. Additionally getting 8 votes from the Democratic side, while challenging, is not impossible. There are 2 independent senators, plus multiple Democratic senators from Republican controlled states. 23 Democratic senators are up for reelection in 2018, and some of them may me susceptible to voting for things to ensure reelection.

Now all that doesn't really guarantee that the legislative branch will be purely a factory of republican will. The Democrats had a minority in the senate under Obama for the past few years, but arguably were still very effective. But given all the factors against the Democrats favor, there is fair reason to be concerned that the legislature will be able to be effective in Republican control.

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    I read that wiki article previously and was confused by the last paragraph of the introduction-- "In most proposed variations of the nuclear option, the presiding officer would rule that a simple majority vote is sufficient to end debate. If the ruling is challenged, a majority would be required to overturn it. If the ruling is upheld, it becomes a precedent. This would end what had effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation." What becomes a precedent? Isn't each use of the nuclear option a one-off? – temporary_user_name Jan 26 '17 at 23:05
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    As in, doesn't it only affect the issue being filibustered in the moment? What precedent is created for the future? – temporary_user_name Jan 26 '17 at 23:06
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    @Aerovistae no. It's permanent. At the moment the Democrats do not have the ability to filibuster for court nominations (except scotus) – David Grinberg Jan 27 '17 at 0:45
4

If the Republicans did not have a majority in the Senate, then they couldn't even bring legislation up in that body. They could only amend legislation that the Democratic majority would allow. They went through that from 2007 through 2014 and didn't like it. At least now they can vote on legislation and make Democrats actively vote against legislation.

Some things can't be filibustered. For example, if the Senate passes a budget related bill that differs from the House version, the revised version only requires a majority vote. That process is called reconciliation. Also appointments other than to the Supreme Court are not subject to a filibuster.

There is always the threat of changing the rules (the "nuclear option"). If the Democratic minority overuses the filibuster, it can be taken away. So there are reasons to save it for the really important things.

There are ten Democrats from states that voted for Donald Trump for president and who are up for election in 2018. They might find it politically difficult to oppose Trump. After all, a Republican candidate won every federal Senate race in states that Trump won. If there's no filibuster, then they don't have to take risky votes to uphold it.

1

Not everything is subject to cloture. Appointments and spending bills, for example. And, since your title mentions President, actions by the executive do not even go through the senate. Executive orders, for example, cannot be thwarted by a senate cloture vote. Cloture can change who the president may nominate for appointments, but a conservative president will still nominate conservatives.

And finally, wedge issues can defeat cloture. For example, many liberals are very concerned about issues that Democrats are far from united on. Torture and mass surveillance, for example, are very illiberal but still have enough Democratic supporters that liberals could not defend against them through cloture.

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    Downvote without comment? Really? – J Doe Jan 26 '17 at 20:49
1

In the U.S. Congressmen are not required to vote along party lines. Party merely means their likely support of a bill. An individual congress member can side against their party in support of a bill. The majority just has to work a lot less to get that difference to 60 by flipping few minority members to vote with them.

Making some of the minority party say "yes this is a good idea" will mean that they have to modify the bill to be acceptable to the difference, which again, is a matter of hard deals, but it's easier to do. It's also working as designed as minority voices are important to a functioning Representative Democracy. In fact, the ACA is one of the few landmark big laws to pass Congress without any support from the minority party. Most laws you hear about passing have some bipartisan support.

There are also some cases where the bill does have bipartisan support, are written by a minority party member, but are actually introduced by a majority party member so it looks favorable to the majority. The person who wrote this bill can much better support it by finding enough fellow party leaders to support it quietly while the majority pat themselves on the back and shout about how awesome "their" bill is. Sneaky and underhanded? Yep? But hey, if you like laws and sausages... (I actually know a congressional staffer who is a part of a scheme like this right now.).

There's also a lot of bills that go in with no intention of passing at all from both sides, that are merely there so the congress person can say "I sent a bill that does this thing that is popular with my constituency. It was defeated, but that just means I need to go back and work harder. Vote me another term."

Congress are not answerable to their parties, but to the people who elected them, so their motives are going to be about how can I keep this job. Thus, it may be beneficial to "Dance with the Devil" if your district didn't vote for your party in the last election, or they are showing signs of a swing.

0

There are numerous examples of the Senate being able to circumvent the rule directly that requires 60 votes to end a filibuster, and the threat to expand the nuclear option to other areas. Then there are some political reasons that many Senators on the Democratic side may find common cause with the GOP. Finally, filibusters are rare, not the least of which is that they are taxing physically.

In November 2013, Senate Democrats used the nuclear option to eliminate filibusters on executive branch nominations and federal judicial appointments other than those to the Supreme Court. Given that personnel is policy this allows the GOP to staff through appointments basically anyone the Trump administration likes throughout the executive branch and federal courts. Note that when Harry Reid used the nuclear option, the rule change only used a simple majority of votes. The precedent has been set then to change this rule if Democrats become too obstructionist--with the judge being GOP senators solely.

Second there are numerous types of votes that require simple majority such as budget reconciliation

Reconciliation is a legislative process of the United States Senate intended to allow consideration of a budget bill with debate limited to twenty hours under Senate rules. Because of this limited debate, reconciliation bills are not subject to the filibuster in the Senate. Reconciliation also exists in the United States House of Representatives, but because the House regularly passes rules that constrain debate and amendments, the process has had a less significant impact on that body.

Fast tracking of trade agreements is another such example. Bills that automatically expire at a given date must be passed to reauthorize and re-fund those initiatives usually require Democrats to gather majorities to do so. For example, the World Bank legislation is on such a time frame.

In addition, the Democrats are at a structural disadvantage on legislation because the President is of the same party and is not likely to veto much. So if a law does pass with 51 votes its likely to become law. Debt limit debates, threats of government shutdown, and the like are likely to become a thing of the past. Opposition parties use these tools to garner concessions, and likely there will be few.

Politically speaking it doesn't get better for the Democrats either. PBS states

The election two years from now had already looked difficult for Senate Democrats, who must defend 25 seats compared to just eight held by Republicans. The Democrats’ list includes two independents, Vermont’s Bernie Sanders and Maine’s Angus King, who align with them.

Of those 25 senators, 13 are from states Trump captured or narrowly lost. Among those are Maine, Michigan, Pennsylvania and Wisconsin, which hadn’t backed a GOP presidential candidate since the 1980s...Five Democrats are from states Trump easily carried, by 19 percentage points or more — Indiana, North Dakota, West Virginia, Missouri and Montana.

“They should be terrified,” Ward Baker, executive director of the National Republican Senatorial Committee, the Senate GOP’s political organization, said of the Democrats

I don't think these Senators are likely to filibuster any of Trump's agenda. Some may join with the GOP on important issues like the reform of the unpopular ACA.

Finally there is the filibuster itself. The cloture vote is really a wink-wink, nod, nod, to threaten the filibuster, at which time the motion is usually tabled if the vote totals don't reach 60. However, if it's not tabled, someone has to be willing actually go through with the filibuster. In other words the more the threat of cloture is used, the more likely a GOP Senate may require Democrats to actually filibuster. And given the average age of Democrats I'm not totally convinced they have the ability to do so on a regular basis.

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    "Trump's meaningful agenda" = why can't you just answer a question without these silly non-sequiturs scattered about? This isn't a bad answer...aside from that. – user1530 Jan 26 '17 at 20:31
  • @blip I just meant something important to the Trump agenda, not that it would have meaningful impact to Americans. So I think Dems would be ok to filibuster unimportant politically pieces of legislation or something a GOP Senator wanted that wasn't necessarily on Trump's plan. I can be too linear sometimes. – K Dog Jan 26 '17 at 20:35
  • Does that imply presidents sometimes push agendas that aren't meaningful to them? – user1530 Jan 26 '17 at 20:39
  • @blip It just means sometimes trivial pieces of legislation gets floated. And some laws are certainly more important to Presidents than others. – K Dog Jan 26 '17 at 20:40
  • And you are saying democrats would join the GOP to repeal the ACA? – user1530 Jan 26 '17 at 20:42
-1

A party that is not okay with inflicting a large amount of damage and destruction for pure political spite might not be inclined, morally or ethically, to engage in blanket obstruction.

There was a reason why that level of obstruction was unprecedented. That's not the way a government is supposed to operate.

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    @KDog - Look at the historical record - filibusters invoked, the number of judicial nominations that were passed/filled historically. Look at the amount of legislation and enacted. You'll see the GOP blow away all previous records by a massive margin during the Clinton years, you'll see that number reduced during the Bush years, then the previous records, set by the GOP, blown away again during the Obama years. You also see GOP legislators sponsoring legislation then voting against their own bills once Obama is on record as willing, you see the unprecedented 1 year + Supreme Court vacancy. – PoloHoleSet Jan 26 '17 at 19:06
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    You do know what Borking means, right? – K Dog Jan 26 '17 at 19:40
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    @KDog - "The Biden Rule" - are you aware of what that is? When Biden made his speech, he talked about shelving consideration for the weeks leading up to the presidential election, to avoid political posturing. He did not talk about leaving a vacancy in SCOTUS for a full year. He also specifically said they should take it back up immediately after the general election. I'm not sure how that relates to eight solid years of relentless, non-stop, lock-step, complete obstruction. So, yeah, "unbelievable" that you'd pretend that's related somehow. – PoloHoleSet Jan 26 '17 at 19:48
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    @PoloHoleSet: I didn't say anything about the target of their obstructionism. Are you really claiming that their actions were not a calculated attempt to obstruct? – Ben Voigt Jan 27 '17 at 16:18
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    @PoloHoleSet: Still disingenuous to give only one party the benefit of the doubt. By an identical argument to the one you used, the Republicans "so-called obstruction" of continuing resolutions should actually be viewed as "a calculated attempt to force a normal budget and appropriations process". Not only that, but the process by which the House does budget and appropriations and the Senate and President have no input other than up/down vote is Constitutionally-mandated. You can point out benefits from obstruction, but it never changes the fact that the Democrat actions were obstructionist. – Ben Voigt Jan 27 '17 at 20:52
-5

With one party in control, it is much easier to push through initiatives of that party and its supporters without a rigorous debates.

The government is set up with divided powers to act as checks and controls against each branch. With one party in control, two of the branches are potentially compromised, and the other branch may see long term power shift to the extent new justices are appointed.

For liberals and especially conservatives, there is a lot to be feared of now.

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