The Senate Filibuster Rule Should Be Preserved But That’s Not the End Of the Story

6/2/17

Given the high level of public frustration over Washington gridlock, it was just a matter of time before calls for elimination of the Senate filibuster rule would intensify.  These gained more prominence this week when President Trump himself said it would help his agenda to pass “fast and easy,” even though his top priorities of ACA “repeal and replace” and tax reform could be passed by a simple majority in the Senate.  Fortunately, Senate Majority Leader Mitch McConnell (R-KY) provided immediate reassurances that there is no interest in changing this well-established rule designed to protect the rights of the minority.  Make no mistake about it, this would be disastrous for business generally, and employers and their employees in particular.  To cut right to the chase, in the absence of a filibuster rule, unions would be established in workplaces today through the card check process.

(If you don’t need a Schoolhouse Rock-type tutorial on filibusters, you can skip the next three paragraphs.)

Just to refresh your memory, the Senate operates by a different set of rules than the House, where a majority can pass most bills dealing with virtually any subject.  The Senate has fewer restrictions on debate and, theoretically at least, any Senator can hold the floor for as long as she or he speaks, effectively preventing a vote on the measure.  If you can’t envision this, check out the 1939 movie classic “Mr. Smith Goes to Washington.”  In reality, the kind of performance Jimmy Stewart displayed in that movie rarely occurs and, even in recent years, there have been relatively few actual filibusters.  Instead, what has increased is the threat of filibusters, which occurs virtually every time a measure with even a modicum of controversy is involved.

The only way such a filibuster can be avoided is by invoking “cloture,” which requires the support of 60 senators.  When you consider the fact that, since 1980, there has been only one Congress where one party (combined with two Independents) had sixty votes—and that was only for a few months—you can see why cloture has become such a formidable hurdle.   The erosion of bipartisan efforts to tackle anything controversial has made it even more so.

Indeed, exceptions to the rule have been created.  In 1974, Congress established the annual budget reconciliation process, which provides for majority vote in the Senate but must be limited to tax and spend items.  More recently, Democratic Majority Leader Harry Reid (D-NV) used the so-called nuclear option in 2013 to confirm nominees to politically appointed offices in the Executive Branch as well as federal judges, other than U.S. Supreme Court justices.  This year, Leader McConnell extended the option to the Supreme Court in confirming Neil Gorsuch.

So, if these exceptions are already in place, why not go all the way and allow majority vote for passage of all legislation?  Keep in mind these exceptions have one thing in common.  None of them allows the Senate by a simple majority to impose a lasting change on policy beyond the tax and spend items that are subject to annual review.  From an employment policy perspective, think of this in terms of the difference between the annual funding for the Labor Department’s Wage and Hour Division--which enforces the minimum wage and overtime requirements of the Fair Labor Standards Act—and the requirements of the Act itself ($7.25 minimum wage, time-and-a-half for hours worked over 40 in a week, etc.).  The former could have its budget cut through the reconciliation process, but changes in the FLSA’s requirements would still require 60 votes.

A better question is why, with a Republican majority in both houses of Congress and a Republican President, wouldn’t business favor elimination of the filibuster rule?  Wouldn’t this ensure enactment of favorable reforms of laws, like the FLSA, that are mired in mid-Twentieth Century assumptions? 

First of all, this assumes a Republican majority inevitably produces pro-business reforms.  That could be the case for most employment laws, but there would be no guarantees.

More importantly, what happens after the next presidential election?  If the White House and Congress were both to switch to Democratic control, would anyone doubt that it would make card check elections and other pro-labor reforms a reality by a simple majority vote in the Senate.  Moreover, other new laws dealing with mandated paid leave, scheduling rights, gender pay equity, broader overtime coverage, and so on, would be enacted with little or no attempt to address legitimate concerns about their impact on businesses large and small. 

Even with some likelihood of short-term victories, the stability of our employment laws would suffer.  As it is, I hear numerous complaints from our members about the instability and unpredictability of National Labor Relations Board rulings and various regulatory provisions that shift with each change in control of the Executive Branch, with a significant impact on compliance strategies, payroll systems, benefit administration, etc.  At least those changes must stay confined within the constraints of the statutes they implement, which has a moderating impact.

Now, as a long-time participant in Washington policymaking, this has been a very easy blog for me to write up to this point.  The dangers of eliminating the filibuster rule are clear to anyone who has been through the various ebbs and flows of election cycles, regardless of the policy area of focus.  What is not so easy is figuring out how to address the very real problem of an employment law architecture composed entirely in the Twentieth Century, in some cases as far back as the Depression era.  As we have pointed out in the Workplace 2020 core report, the most recent component of this structure—the Family and Medical Leave Act of 1993—is almost a quarter century old.

Yet, the solution is not to take advantage of a possibly temporary majority to enact a series of wish list items that provide a quick fix to our biggest complaints.  Rather, it is to engage enough policymakers from both parties to find solutions that work and that are lasting.  These may not always be completely to our liking, but at least they would ensure stability, while also taking into consideration the legitimate concerns of business in coming up with rules that work.  In the current climate, this is a big lift, but a worthwhile effort nevertheless in which our Association would be more than willing to engage.