Did Dems Open the Door to “51” for Legislation?

One thing all observers seem to agree on is that the decision by Republicans to employ the “nuclear option” to secure the confirmation of Supreme Court nominee Neil Gorsuch has forever changed the Senate. The question now is how much? In what now seems a prophetic statement, 6th District Congressman Glenn Grothman told the Jerry Bader radio show in January that it was unlikely Republicans could repeal and replace the Affordable Care Act unless they were willing to change the Senate rules to allow a simple 51 vote majority to pass legislation. In fact, such a wholesale elimination of the filibuster is probably inevitable. It seems the only question is who will do it: Democrats or Republicans?

Democrats first employed the “nuclear option” in 2013 for federal judges other than Supreme Court. Now that Republicans have removed it at that level, would they consider doing away with the filibuster altogether? U.S. Senator Ron Johnson considers that unlikely. But in what is a reversal of a long-held position, Johnson told Media Trackers Friday that he now has an open mind on the idea:

“First of all, we really did very little to change any precedent in the U.S. Senate. Harry Reid (former Senate Majority Leader) is the one who changed the precedent. He invoked the nuclear option where he broke the rules to change the rules and created a new precedent where you can change the rules in the Senate with just 51 votes. That was the harm done to the Senate. We just basically invoked the same precedent to basically fulfill an election promise.”

With the change made for Supreme Court confirmation, there is now talk of reforming the rule to eliminate the filibuster for legislation too. Johnson has long been skittish about the prospect of the Senate being able to pass bills with a simple 51 vote majority, but his resistance to the concept is fading:

“I will say the 60 vote threshold on legislation has prevented a lot of bad legislation from being passed, but it has also prevented the retrenchment, the devolution of power away from this dysfunctional place back to states and local government. So I’m every bit as frustrated, probably more so than anybody, in terms of our inability to limit the harm of the federal government.

But I think you have to take a look at that very carefully in terms of changing that precedent. What I would suggest is, if we want to enact anything, we should re-institute some rules governing how you can change the rules. Because that’s the rule harm. The fact that any majority can change any rule of the Senate pretty well states there really are no hard and fast rules in the United States Senate…but that’s not Republicans that did that, that was Democrats.”

That said, Johnson acknowledges that the move to 51 votes to pass legislation is inevitable:

There really are no long-term rules now in the Senate, when just 51 senators can change them. Again, Harry Reid did that harm to the senate…so no, we probably are on that slippery slope. What I will say; there are plenty state legislatures around the country that have dual chambers, just simple majority votes in each chamber. I’ve got an open mind on this. In the end, the way I think you have to enact legislation anyway is you have to win the hearts and minds of the American public. You have to sell your ideas. You have to win the political argument.

While Johnson’s position has shifted, he doesn’t expect such a drastic to change to happen anytime soon:

“Well, I don’t think it will happen under leader McConnell. I think you already have 40 some senators who’ve signed a letter that they’re not going to do that…I’m not going to sign that letter quite honestly. I’ve still got an open mind here. I don’t think it’s going to change on legislation. But it wouldn’t surprise me the first time Democrats got in here, they want to pass another massive increase in government, another massive tax increase, they wouldn’t hesitate in a heartbeat to change the rules on a particular piece of legislation to 51 votes.

And it is the belief that when (not if) Democrats get control of both houses of Congress and the White House again that they will change the rules to 51 votes for legislation that has some conservatives arguing Republicans should do it now. As John Yoo and Sai Prakash argued in a Wall Street Journal opinion piece, for decades the Senate filibuster has served as a means of avoiding debate, not extending it as was the original intent:

Senators also should keep in mind that the filibuster has strayed far from its roots in promoting deliberation. As in the 1939 film “Mr. Smith Goes to Washington,” senators had to filibuster by physically delivering speeches to prevent the majority from calling for a vote. Sen. Strom Thurmond, then a Democrat from South Carolina, set the record by speaking for 24 hours against the 1957 Civil Rights Act.


But in 1917, senators adopted a procedure called “cloture” under which a two-thirds vote would end debate and bring a measure to a vote. That threshold was reduced to 60 votes in 1975—but five years earlier Majority Leader Mike Mansfield had introduced the “two track” system: If cloture couldn’t be achieved, senators simply accepted that a filibuster would continue and turned to other business, without requiring anyone to keep speaking.


What had once been a rare showstopper that ground the Senate to a halt has become a cheap and easy way to increase the effective vote threshold for Senate action to 60 votes. Senators “extend” debate by shrinking from it. Little wonder that filibusters are as common as broken campaign promises.

The New York Times recently imagined what life in Washington might look like without the filibuster:

Without the current filibuster rule on legislation, Democrats, should they dominate Washington again one day, could seek a large increase in the minimum wage, increased Social Security benefits, paid family leave or Medicare for all. And they would need only a simple majority to do it.


Similarly, Republicans could pass large permanent tax cuts, oil drilling in the Arctic or a national concealed-carry gun law. Such power is something that President Trump might see as quite delicious, and something that he may well push for if Republicans confirm Judge Neil M. Gorsuch for the Supreme Court without meaningful support from Democrats.

It was the idea that extremist factions in both parties could rule the day with a “51” rule that kept Johnson from even considering it previously. The idea that Democrats will employ it the next time they have complete control of government is what now has him of an open mind on the topic. Yoo and Prakash argue that both parties should embrace the change:

Neither Republicans nor Democrats should fear institutional change. Arcane and opaque rules have allowed a minority to paralyze the Senate and prevent consideration of nominees, treaties and legislation. Democracy is too important to permit winks, nods and obstruction to be the order of the day. Senators should stop worrying and learn to love the nuclear option.

What some conservatives fear is that Republicans failing to change the rules now will be tantamount to unilateral disarmament. The tool to advance the conservative agenda they pass on now likely will be embraced by Democrats the next time they control all levers of power. And that could come as soon as 2020.