Peter Friedmann's View from Washington DC - April 2017

In 2013, a dinner on Capitol Hill. 8 lobbyists, 2 Senators, both Democrats. The topic on everyone’s lips in DC at the time – even though Democrats had been elected in great numbers, these Democratic Senators were frustrated. Even with the Majority in the House of Representatives and the Senate, and with President Obama in the White House, it was excruciatingly difficult if not impossible to advance the Affordable Care Act (ObamaCare), environmental legislation, labor union card check. The legislation always seemed to die in the Senate.

This is because since 1806, the earliest years of our country, the Senate Minority has had a deadly weapon - the filibuster. Any Senator can stand up and talk forever, and then turn the floor over to another Senator who would do the same, bringing the Senate to a halt. The only way to end this is through what is known as the “cloture vote," requiring 60 senators to vote to terminate debate. So only if a party has 60 Senators and all 60 are desiring to cut off debate, will debate be ceased and the Majority party can move its legislation.

However it is generally very difficult to get 60 senators to agree to cut off debate. Unlike the House, not all members of each party march in lockstep in the Senate. We're seeing this today where Republican proposals for revamping Obama Care, or imposing a border adjustment tax, or repealing Obama environmental regulations, or confirming Trump cabinet nominees, are supported by some Democrats and opposed by some Republicans.

Back in 2013 Senator Harry Reid, leader of the Majority Democrats became so frustrated, that he proposed something so extreme that it was called the ‘nuclear option’ -- ending the 200-year-old tradition of the filibuster. Washington, DC was aghast; this would change the Senate forever. It would end over 200 years of the Senate serving as the ‘wiser, more deliberative’ body, able to thoughtfully (or just stubbornly) slow the rush to judgement. He proposed to end the filibuster in cases of confirmation of presidential nominees for executive branch positions such as cabinet secretaries, as well as federal judges. From then on only a simple majority, just 51 votes (including if needed, the Vice President), would be needed.

It passed, with almost all Democratic senators supporting; all Republican senators opposed. Without the filibuster, opponents of President Obama's nominations, lost their only tool to stop them. The Minority party was toothless. The President’s nominations for executive branch position, and federal judges moved expeditiously through the confirmation process. Many continue to sit on federal courts nationwide, often for life.

While I served in the Senate, the Majority switched hands several times. First, the Democrats had the majority, then the Republicans, and then the Democrats again,

before I left the Hill. So we wondered, would the thrill of power that Harry Reid and the Democratic Majority now enjoyed be short-lived? After all, one day they might find themselves in the Minority -- wouldn’t they like the ability to prevent a Republican President and a Republican Majority Congress from having their way on nominations?

Clearly, they didn’t think the tables would turn so quickly. But now, just six years later, the Democrats find themselves in the Minority, now without the filibuster to thwart or slow the Republican president and a Republican Congress. We are watching most of President Trump’s nominations confirmed despite almost united Democratic opposition.

Back in 2013, it seemed a step too far to prevent the Minority party from having an effective voice on the nomination of a Justice to the US Supreme Court. The hundreds of Presidential nominations of Executive branch positions and federal judges were one thing, but the Supreme Court, another. Nonetheless, the precedent had been set by Senator Reid and his Majority; six years later it was not difficult to simply extend that ‘nuclear option’ to one more position. On April 6, 2017, Reid’s successor, the Majority Leader Senator McConnell led his Republican Majority to eliminate the filibuster for nomination of a US Supreme Court Justice.

Thanks to the ‘nuclear option’ first triggered in 2013, President Trump’s pick, Neil Gorsuch, was confirmed by the Senate despite opposition by almost (but not all) Democrats. He now sits on the Supreme Court for life.

Could this scenario not have been foreseen back in 2013? What goes around comes around.

Peter Friedmann

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