Speaking of the filibuster, Walter Mondale (who has some special expertise on the matter) has a suggestion for breaking the current deadlock that allows the 41-member Republican minority of the U.S. Senate to stymie action by the rest of the legislative branch. The idea somewhat resembles the famed/notorious “nuclear option” that Senate Republicans threatened in 2005 when they were frustrated by Dem filibusters against Bush judicial appointments.
What Mondale recommends (and has discussed with some of his old friends in the Senate) is for Democrats to threaten to use a friendly ruling from the chair to change the filibuster rule by a simple majority vote.
The reason this was nicknamed “the nuclear option” in Dick Cheney days was that it was considered such an aggressive move, such a violation of Senate norms and sensibilities, that it would trigger all-out war and inspire the “losers” to use every procedural means to render the Senate nonfunctioning.
But if you think back to that 2005 chapter of filibuster/nuclear history, you can see the key to Mondale’s suggestion. Neither side caved in from the nuclear threat. Instead a “gang of 14” moderates — seven from each party — worked out a backroom compromise (the Republicans agreed to use their votes to block some of the judicial appointments; the Democrats agreed to use their votes to break the filibuster and allow confirmation of some others). The hard-liners on either side lacked the votes either to sustain a filibuster or to break one.
So here’s what Mondale thinks should happen. Democrats assert the constitutional principle that the Senate, by majority vote, has the power to make its own rules, at least at the beginning of a new session. A friendly presiding officer (in the current situation, presumably Joe Biden) rules in favor, based on the argument that the U.S. Constitution outranks the Senate rulebook. The chair’s ruling can be appealed, but a vote on a motion to table that objection cannot be filibustered and the chair’s ruling can be upheld by a simple majority vote. This would push put the same majority in a position, at the beginning of the next session, to push through a new filibuster rule, or to ban filibusters entirely. (Mondale does not favor the latter, by the way).
Faced with that clear threat, Mondale believes, relative moderates from both parties would quickly work out a backroom compromise that would change, but not abolish, the filibuster rule.
One more thing you should know. The last major change in the filibuster rule occurred in 1975, when the supermajority necessary to invoke cloture was reduced from two-thirds (67 votes) to its current level of three-fifths (60 votes). Mondale, in his own Senate heyday, was one of the key players. And the strategy he’s now suggesting was exactly how they got it done.
Filibusters and civil rights
In those days, filibustering was used largely as a method by which Southern senators blocked the enactment of civil-rights legislation that had majority support. Filibuster “reform,” at the time amounted to getting the cloture number down from 67. But 67 votes was also the number required to end a filibuster on a proposed a rule change. … You get the idea.
(Pause reading here to try to answer a surprisingly difficult trivia question: Who was vice president in 1975? The answer will be revealed shortly, but pat yourself on the back if you already know.)
So I should have consulted Mondale in January when I wrote my previous long piece on the filibuster, but I heard he wanted to follow up on the piece so I called. I have actually written before that one of Mondale’s big Senate accomplishments was getting the filibuster rule changed, but I hadn’t realized that it came about because of the threatened nuclear option. But it was (although the term “nuclear option” wasn’t coined back then and there are technical differences between what Mondale accomplished in 1975 and the 2005 incident).
The Senate never starts over
Technically, by tradition, the U.S. House considers that it starts each session with no rules. So the House begins each new session by adopting the rules, and that presents an opportunity to change them. (There is, of course, no filibuster rule in the House.) But the Senate, by tradition, considers itself to be in continuous existence and doesn’t have to recreate itself to start a new session. Therefore, the old rules are in effect and, theoretically, any proposal to change the rules could be blocked by a filibuster.
Mondale and his co-conspirators cast doubt on that tradition in 1975, by invoking the Constitution.
It is really beyond dispute that the Senate is in charge of its own rules. (Art. I, Sec. 5: “Each House may determine the Rules of its Proceedings.”) The Constitution — which does establish supermajorities for a few special kinds of kinds of actions, like ratification of treaties — does not require a supermajority to cut off debate, nor to adopt or change a rule. So, by implication, the Mondale 1975 argument went, a majority of the Senate can set or change the rules, especially at the beginning of a new session.
When the Senate convened for the beginning of the 1975 session, Mondale asked for a vote on a proposal to change the filibuster rule. One of his allies (a Kansas Republican, by the way) asked that the rule change be subject to a simple majority vote. Senate traditionalists (including, by the way, many Democrats) objected that this would violate Senate tradition. Vice President Nelson Rockefeller (a Republican, by the way) disregarded the advice of the parliamentarian and ruled, in effect, that the issue of whether the Senate could change its rule by majority vote was itself subject to a majority vote.
At that point, things got delayed. The traditionalists (led by a Majority Leader Mike Mansfield, a liberal and a Democrat, by the way) wanted to avoid setting the precedent of allowing rule changes by majority vote, so they repaired to the back room and worked out a deal. The vote to invoke cloture would be reduced to three-fifths, but the rule change would be adopted by a two-third vote. In a concession to close the deal, the filibuster reformers agreed that the new rule would still require a two-thirds to end a filibuster on a rule change.
Some historical tidbits
(A couple of points in passing. 1. Congrats if you remembered Rocky was veep. In 1973, the vice presidency fell vacant after the resignation of the disgraced bribe-taker Spiro Agnew. Then-Pres. Nixon nominated Gerald Ford to fill the vacancy. Then Nixon resigned, Ford became pres and nominated Rockefeller as his veep. And by the way, the other leading contender to be Ford’s veep was George H.W. Bush. 2. Note that the votes on these issues were bipartisan and that a Republican veep worked with the Dem majority to change the rule. Are those days gone forever?)
But the main point is that if the presiding officer is on board with the plan, the threat to change the status quo by majority vote was enough to force a face-saving compromise. If you squint at it hard, the last part of the compromise — requiring two-thirds to force a vote on a rule change — may be mostly symbolic. Since the incident had also established that with a friendly ruling from the chair, a majority can change the rule about how to change the rules.
By the way, Mondale thinks the filibuster should be preserved. He’s frustrated with the hyperpartisan way it’s being used this session which, he said, “enables the Republican minority to stop virtually anything they don’t like.” But rather than end the practice of filibusters, he thinks the number of votes needed for cloture needs to be adjusted downward again, maybe to 58 or 56.
He believes the filibuster is an important reason that the U.S. Senate is special, especially compared to the weak upper chambers in other bicameral legislatures around the world.
Who am I to disagree with Walter Mondale, especially on the U.S. Senate? But I do. As I made clear in my previous filibuster piece, I would favor ending the supermajority for cloture entirely. It’s undemocratic, extraconstitutional, the creation of a historical accident. And however much this is claimed, it isn’t about protecting full debate — it’s about allowing a minority to block the majority.
Mondale mentioned that Sen. Tom Harkin, D-Iowa, has had any idea for filibuster reform for several years. The Hill described the idea this way:
“Harkin’s plan would reduce the amount of votes needed to break a filibuster the longer it goes on. Senators would need 60 votes to break the first vote but then the amount of votes needed would drop to 57, then 54 votes and finally 51 votes.”
If you built in enough time between each step, I think it would protect full debate, but eventually restore majority rule. Mondale said he likes the first couple of steps, but would not go all the way to 51 to force a vote. He thinks the supermajority requirement does ensure full debate. If the majority can impose its will, the debate is pointless and everyone will just ignore the discussion until it’s time for the final vote, he said. He gets the last word.