The Legislative Filibuster

9/27/19

Can you name an issue on which President Trump and former Senate Democratic Leader Harry Reid agree? Yes: the legislative filibuster.

In tweets now and then, Trump has called for the Senate to eliminate the 60-vote threshold—the filibuster—for all legislation.  Leader Reid agreed with that idea in a New York Times op-ed in August.  A couple of weeks later, the current Senate Republican Leader Mitch McConnell issued a rebuttal to Reid in the form of a New York Times op-ed.  Dueling New York Times op-eds?  This must be serious.

I wrote a column a few weeks ago about the Senate shenanigans over the last four years that led to the end of the filibuster for federal agency leadership, judges, and Supreme Court justices.  I’ve thought each step on this slippery slope to be ill advised and the next step is to say the Senate only needs a simple majority to pass any bill.  This next-level "nuclear option" makes the Senate a lot like the House and casts aside any fear of the tyranny of the majority.

The Founders wanted senators to be older, wiser, less beholden to political winds, and more deliberate than the House members.  Madison wanted it to be hard to pass laws, especially bad ones.  He wrote in the Federalist Papers: “Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation.”  The nuclear option for legislation throws in the towel on that idea.

The very formation of the Senate was the result of the Great Compromise of 1787.  The body’s rules armed senators with the tools for consensus and protected the rights of the minority.

While I enjoy brushing up on the Federalist papers, let me get to what the end of the legislative filibuster would mean for HR Policy Association members.

The end of the legislative filibuster likely would be unsettling for employers in the short and medium term.  If the Democrats retake the White House and the Senate, federal mandates on family leave, wages, the employee-employer relationship, scheduling, and much more would become law.

For example, Democrats have been successful in lining up cosponsors for the Protecting the Right to Organize Act of 2019 (PRO Act; H.R. 2474) – a laundry list of union favorites including card check, joint employer, the persuader rule, and eliminating right to work and secondary boycott provisions.

In fact, 16 of the 34 Democrats on prognosticator Charlie Cook’s list of vulnerable incumbents have cosponsored it.  One might think members in swing districts would stay neutral on such a partisan bill.  It will be hard for those members to withhold sponsorship in the future when the bill’s enactment is more likely.  But either the unions have been influential, or folks are showing their true colors.

The PRO Act is being “marked up” (meaning reviewed and amended in committee in preparation for a floor vote) this week.  If enacted in its current form, the PRO Act would be the most dramatic rewrite of our labor laws since 1947.

The Education and Labor committee is among the most partisan in the House.  Chairman Bobby Scott (D-VA) has done a good job of vetting and socializing legislation that will be ready to rip if his party controls more of the levers of government after the next election.  The PRO act is a prime example.  It passed the Senate Education and Labor committee by a party-line vote of 26 - 21 on Wednesday.  It is likely to pass the House soon.  The bill won’t go anywhere in the Senate in the next 16 months.  But if either party amends Senate rules to require 51 versus 60 votes to move legislation and the Democrats take control of the Senate, hold on to your hats.

When the talk turns to Senate rules such as filibusters, cloture, and quorum calls being dispensed with, don’t let your eyes glaze over.  Procedures can determine the product and the policy.