Mitch McConnell: I'd prefer to leave the filibuster intact for Democrats next year if we take back the Senate

Before you shake your fist, consider the strategy at work here.

Senate Minority Leader Mitch McConnell (R-Ky.) said on Thursday that if he were to emerge as majority leader following this fall’s elections, he’d prefer to keep in place the minority party’s ability to filibuster legislation…

While he said he thought Senate Majority Leader Harry Reid (D-Nev.) had done a “lot of damage” by using parliamentary procedure to enable some judicial and executive nominees to move through the chamber with 50 votes, he suggested that he had no plans to try to undo that change. He even left the door open to further changing the rules so they would apply to more nominees…

But in stopping short of endorsing filibuster reform for actual legislation, McConnell laid down a marker for how he would run the chamber that could end up upsetting his own members. Should, for example, Republicans emerge from November with a slim Senate majority, there will be a number of legislative items — including, potentially, the repeal of Obamacare — on which he will need 60 votes to end debate.

So he’s planning to maintain Harry Reid’s status quo, in which 51 votes would be needed for cloture on presidential appointments (except to the Supreme Court) but 60 would remain the threshold for actual legislation. Why would he do that? Why not get rid of the filibuster for Senate bills too so that the GOP majority can pass whatever it wants? Two obvious reasons. One: Obama’s going to veto whatever comes out of a Republican Congress so the GOP gains nothing by nuking the rest of the filibuster. Two, more importantly: It’s very likely that Democrats will be regain their Senate majority in 2017 and also quite possible that there’ll be a new Democratic president in office. That would leave just two obstacles to Democrats passing any law they want — the House, which will probably but not definitely still be in GOP hands in three years, and the filibuster in the Senate. If McConnell nukes that filibuster for legislation next year, all Reid has to do when he’s back in charge is say that he’s going to follow Republican precedent. The GOP minority will be completely locked out in the upper chamber with no grounds to complain. McConnell’s playing a long game in refusing to hand that opening to Reid. Better to let Democrats filibuster GOP bills that’ll end up dying on Obama’s desk anyway than to create a Republican buy-in to the Dems’ anti-filibuster agenda.

In fact, keeping the filibuster around may be useful to conservatives too. If you think Mitch the Knife’s going to push an exclusively right-wing agenda as majority leader, think again:

As majority leader, McConnell would command significant authority in setting the agenda. But in a speech in January he indicated that he would aim to focus on areas of consensus, not solely conservative priorities — like repeated votes to repeal Obamacare…

A fully Republican Congress would have an obligation to the party’s would-be 2016 presidential hopeful to avoid extreme positions that would damage GOP presidential chances, analysts say. At the same time, Republicans would bear full responsibility for an institution that is highly unpopular with the public and has been notoriously unproductive in recent years.

“In order to elect a president in 2016, we’re going to have to show in 2015 and ’16 that the American people can trust Republicans with the government,” said Sen. Lamar Alexander (R-Tenn.). “That means that we’ll have to come up with changes that go in a conservative direction, but changes that command support of independent voters as well as our conservative base.”

Tax reform is one example of an initiative that might end up a bit more moderate than conservatives would prefer. Amnesty, of course, is another. It’s unlikely that McConnell would try to pass something that no less than 41 members of his own caucus oppose, but given how much righties seem to distrust him, you’d like the option to filibuster a terrible bill that ends up on the floor with McConnell’s blessing, no? Keeping the current rule intact gives you that option.

One thing I don’t get, though: Why not bring the filibuster back for presidential appointments too? If, in all likelihood, the GOP’s going to be back in the minority in a few years, it’s worth moving to undo Reid’s precedent on appointments as quickly as possible. He might just reverse the rule again, of course, by re-nuking it in 2017 if the GOP brings it back next year, but at least force him to make that move. By acquiescing in what he did, you’ve agreed to move the Overton window on nominations. Having the filibuster intact next year for nominees could benefit conservatives too. It’s quite possible that Obama will nominate someone dubious whom most, but not quite all, Republicans oppose. If the GOP ends up with a slim 51/49 majority, it would take just two Republicans to flip for that nominee to be confirmed — unless the old filibuster rules are reinstated, in which case it would take 11. Why wouldn’t McConnell want to add that extra insurance?

Exit question: If the doomsday scenario comes to pass and Democrats end up controlling the White House and both houses of Congress in 2017, what’s the likelihood that Reid will go ahead and nuke the filibuster on legislation regardless of what McConnell does next year? One hundred percent, right?

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John Sexton 1:00 PM on December 05, 2022