Why Does Senator Sasse Wants to Keep the Filibuster?

How many of you have seen “Mr. Smith Goes to Washington?”

If you haven’t, you are without.

This Jimmy Stewart gem is a must-see for any political junkie like myself, and tells the story of a regular guy roped into running for office by a slick politician, then standing up against corruption once he got there. Because of Senate rules, he was able to hold up the government taking action on something that the corrupt politician’s party supported. The rule was the filibuster.

The filibuster rule is one that says you need 60 votes to accomplish anything in the 100 member Senate, or to at least debate it on the floor. With roots in the ancient Roman Senate, parliamentary rules were used by Cato the Younger to resist Julius Caesar’s autocratic methods by simply talking non-stop until it was dark and Senate business had to cease. It took hold in the United States in the early 1800’s and naturally evolved from the Founder’s intent to make the Senate move slowly.

Votes can pass by a simple majority, but one member – according to the rule – can hold up action on legislation if they feel it is harmful. Traditionally, Senators would have to stand to object, and stay standing, as they debated. Occasionally, a Senator could pass the baton to another colleague in their cause by “taking a question.”

Unfortunately, the filibuster has devolved over the years to be a political tool of opposition, where even the threat of one is enough to freeze business on a subject. Representatives in the House chide their colleagues, saying often, “the other party is the opposition; the Senate is the enemy.”

Over a year and a half ago, Senator Ben Sasse (R-NE) wrote an almost prophetic op-ed on the virtues of the Senate filibuster. While acknowledging the “frustrating” aspects of slow-moving government, and it’s abuse by minority parties, he gave readers a primer in why this is a good thing. Especially as conservatives.

After all, we were the minority party just two years ago, remember?

While the House of Representatives was designed by the Founders to reflect the democratic will of the people, representing smaller, disparate populations, and elected every two years, the Senate was intended to be the opposite.

James Madison recognized the historical nature of a pure democratic body, and wrote:

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders, into intemperate and pernicious resolutions.”

So, does removing the filibuster help in pursuing that goal?

Senator Sasse made the point that while progressives believe the government is the ultimate source of human wellness and societal improvement, conservatives are far more skeptical. We believe that government cannot accomplish either of those things as well as private individuals and organizations, and will always fail. It often creates new problems in addition to failing to solve the previous ones.

Therefore, we want government to struggle to act. And where it does, it should be as local as possible, right? This is the greatest value of a filibuster.

Right now, we stand in an awkward and maddening place between progressives briefly having a filibuster-proof Senate in 2009-’10 (seven months) and our current 53 vote majority. While most legislation can pass by a simple vote, the political mess and party division has created a dynamic that makes even that difficult to achieve, let alone the passive acceptance of a vote by seven Senators from the opposition party. The only answer on the most controversial topics would be to have a 60 vote majority.

Weren’t we grateful for this stopping most of President Obama’s and Senator Reid’s radical agenda after 2010?

In fact, it was this rule that held off for years the passage of things like the Federal Reserve Act in 1913 and the liberal court-packing attempted by Franklin D Roosevelt in the 30’s. The only reason Obamacare was passed in 2010 was because of a slim window where the Democrats had 60 votes to “reconcile” the House bill. So, it stands to reason we need the same threshold now to reverse it.

And yet, its the failure of the Obamacare repeal effort in the Senate that has some Republicans calling for the removal of the filibuster (a rule that itself only needs a majority to exist).

Senator Sasse makes a strong point for why this is more dangerous than letting Democrats have this power now.

“Progressives believe power—that is the government—is the center of life. We don’t. They place more faith in government than we do. They want to make it easier, more “efficient,” to grow the government. So making it easier for government to act when Republicans are in the majority might have consequences we will regret when we are next in the minority.

“Consider the three most consequential moments in the growth of federal power in the past century—the 1930s New Deal, the mid-1960s Great Society programs, and the first two years of this administration that brought us, among other things, ObamaCare. All occurred when Democrats had the White House, a majority in Congress and, crucially, supermajorities in the Senate. They could act unimpeded by a Republican minority.

“If Republicans eliminate the Senate’s supermajority requirements to pass bills in the name of efficiency, it will guarantee that every time Democrats have the presidency and even a bare majority in both houses of Congress, they will party like it’s 1936, 1965 and 2009. They will grow government, and there will be nothing conservatives can do about it.

“Imagine what Democratic majorities could do with no Senate filibuster: cap and trade, a national gun registry, federal abolition of state right-to-work laws, the abolition of secret-ballot union representation elections in favor of card checks, record tax increases. Everything would be in play. Such a Congress could tick off every box on Bernie Sanders’s wish list, and conservatives would have handed them the cudgel to do so.”

Now, do you still think we should get rid of it?

If you do, you’re not a thinking person.

That being said, Rep. Tom McClintock (R-CA) sees a better solution for reforming the modern filibuster rule without discarding it. He gave a speech earlier this year at Hillsdale College on the subject of reforming the rule, and I thought it was worth sharing some of it here.

Rep. McClintock says of the filibuster:

“This parliamentary principle assumes that there is an actual debate, that it is germane to the subject at hand, and that it is not conducted in a manifestly dilatory manner.

“Within a few decades of the American Founding, senators rediscovered Cato’s practice of killing a bill by killing time, and the Senate filibuster was born. Yet it was rarely used because of its natural limitations. A filibustering senator had to remain for the most part at his desk and on his feet.

“In 1908, for example, Sen Robert La Follette of Wisconsin held the floor for 18 hours—speaking for long periods of time, and demanding dozens of quorum calls and rollcall votes—to stall a banking reform bill. The bill eventually passed, but not without significant consternation on both sides, due to the fact that until the filibustered matter was disposed of, the Senate could not move on to other business.”

The intended use of the filibuster was watered down however, starting in 1917, when the Senate imposed a super-majority threshold called “cloture,” first set at two thirds (66 today), then three fifths as it is today. Debate could be ended if the supermajority wished to move on. This still seemed a reasonable, but needed reform in changing times. It still required the physical act of standing at your desk and speaking. The rule was only invoked 58 times between 1917 and 1970.

However, this is when the filibuster met it’s match: if you can’t beat it, beat it to death.

In 1970, Senate Majority Leader Senator Mike Mansfield (D-MT) changed the rules to allow a “two-track” system where filibustering is now a virtual act, able to be passed over so the Senate can move onto other business. As a result, filibusters increased from roughly one a year to 37 a year, with few resolutions. Over five years, the Senate gutted the rule to get more legislation passed. This means a bill can essentially be filibustered by the simple threat of one, rather than by the intended physical opposition of something. Whereas the purpose of the filibuster was to force a delay to debate something, the “two-track” rule eliminated debate, and codified partisan division.

A wise man once told me, “don’t air your grievances yet, unless you have a solution first.” So, here it is, as delivered again by Rep. McClintock.

First, the Senate should get rid of the two-track system that allows it to bypass a filibustered bill and reinstitute the pre-1970 requirement that filibusterers hold the floor.

Second, the Senate should restore the parliamentary principle that debate must be germane to the pending piece of legislation. (Sorry Ted, no more Green Eggs & Ham. But I’m sure you’d find a way.)

Rep. McClintock provided three additional suggestions (which can be read in full here), but I believe these two would restore the dignity of the filibuster while resolving some of the legitimate concerns of do-nothing politics. The only reform I would add is unlikely, but equally important, in my view: repealing the 17th amendment. I discuss that in more detail HERE.

So in closing, yes, the level of resistance by the Democrat Party is incredibly stupid right now, but they viewed ours the same way just a few years ago. This is the way government works, and as Sen Sasse pointed out, that’s the way we should WANT it to work. To fix it, we should follow the advice of Rep. McClintock and get rid of the “two-track” filibuster process and send Mr. Smith back to Washington the way he should be.

Meanwhile, we should keep making America great on the local level while the feds play with political fidget spinners. That’s how it was supposed to be anyway.


The Filibuster Needs to be Preserved

Count me out when it comes to repeal of the legislative filibuster. I don’t think there is support on either side of the aisle to do that in the Senate and for those who keep bringing it up as an obstacle to Obamacare repeal, I would note that the GOP cannot get 50 of its own senators to agree. Sixty is not even an issue right now.

I realize there is no trust on either side and both sides think the other is ready at any moment to abandon the legislative filibuster, having seen the nominations filibuster eradicated. I do not think that is the case. And frankly, the filibuster is the last line of defense conservatives have against big government.

As we are seeing in the Senate with the failure to repeal Obamacare, there are always enough votes to grow government. There are always enough votes for a new government entitlement. But rarely are there votes to withstand the growth of government. That is why the filibuster must remain. It is the last line of defense.

If the Democrats took back power and scuttled it, it is not like they would not have willing and able accomplices within the GOP to help their big government agenda. Until then, it is a tool for people like Rand Paul, Mike Lee, Ted Cruz, and others to stall, delay, and make the growth of government difficult.

I actually doubt the Democrats would repeal it if only because they repealed the nominations filibuster and are seeing the consequences of its repeal with Neil Gorsuch. Likewise, they see the GOP unable to do anything with fifty votes and the filibuster need not even be deployed right now.

Without the filibuster, it is true, the GOP could probably cobble together a plan to alter Obamacare without the reconciliation rules, but it would not be much different from their present attempt. But with the filibuster, conservatives have a way to halt both parties advancing an anti-individual agenda that grows government.

President Trump is blaming the filibuster for a failure to repeal Obamacare. He should not. The failure is with a Senate Republican conference that lied to voters when they never thought they would have to keep their promises.

Is the Filibuster Holding Back Third Parties?

I had an interesting conversation with my father-in-law the other day, during which he posited the question about why third parties have had such a tough time gaining traction in American politics.  Sure, we’ve flirted with them a few times over the years–think of the Reform Party, which brought us the likes of Ross Perot and Jesse “the Body” Ventura–but they haven’t won much, and in Perot’s case may have even cost George H.W. Bush a second term.  Moreover, third parties seem more like sideshows for the political fringe, the destination for loudmouth characters who couldn’t make the cut in the two respectable parties–what might have been Donald Trump’s fate, had the country not been in such a foul mood.

Even so, amongst the electorate there still seems to be a craving for a third way–a party for conservatives who think the GOP jettisoned any semblance of limited government long ago, and another party for liberals who think that Democrats are nothing more than a bunch of sellouts who talk up income inequality while raking the cash in from their Wall Street cronies.  Why haven’t these people been able to channel all that righteous fury and take on the sclerotic two-party system that has been dominant since Abraham Lincoln became the first Republican president over 150 years ago?

There are a number of reasons for this, of course, chief among them being that we don’t have the kind of parliamentary system that lends itself to the coalition building that you see in a place like, say, Great Britain.  America has also evolved a campaign finance system that makes it far more difficult for candidates to raise money outside of the two major political parties.  And then there’s the problem of what a third party would even be capable of doing if it somehow managed to get a candidate or two elected to Congress.  Their numbers would be so small, it would be next to impossible to affect any real change.

It’s that last part, I told my father-in-law, that’s probably the hardest to overcome.

To which he asked, “What if you did away with the filibuster?”

He acknowledged that there would certainly be risks with that approach–the filibuster, after all, had stopped a lot of bad legislation over the years–but it’s also hamstrung the Congress from pushing through a lot of needed reforms (as we’re seeing with Obamacare now, and are likely to see with tax reform).  At the same time, though, the filibuster has entrenched the two-party system in the Senate.  For it to work, virtually all of the senators from the minority party are required to band together so as to deny the majority party the 60 votes they need to invoke cloture.  There isn’t a lot of room for defections–and senators know that there is usually a heavy price to pay for defying the party.  Democrats, in particular, have shown a lot of discipline when it comes to mounting a filibuster.

Now suppose that there is no filibuster.  A lot of the pressure to fall in line is taken off, which frees individual senators to make decisions more independently.  At the same time, though, it could potentially create better opportunities for outsiders to move in and wield some influence.  Two or three senators from a conservative third party, for example, would actually have the power to force changes in legislation on a close vote.  That potential might provide some incentives for backers to begin the hard work of building a viable third party, which could finally compete with Democrats and Republicans.

Granted, it would be a pretty risky move.  With nothing to stop them, a party that held both the Congress and the White House would have carte blanche to do whatever it wanted.  On the other hand, if things get bad and that party gets tossed out of power, it would also be a lot easier to undo legislation.  No matter what, though, doing away with the filibuster would be a serious shakeup of the system.

That’s why Republicans will probably never attempt it.

But if the Democrats take back the Senate and the White House?

Anything goes.

AHCA May Be Best Chance to Replace Obamacare In Our Lifetime

The House of Representatives finally passed a bill to gut Obamacare and many conservatives are upset. Admittedly the bill is not full repeal. It is far from perfect. If I was going to write a health care reform plan, the American Health Care Act would not be it. Still, I’m very glad that the House passed the bill and I fervently hope that the Senate moves the legislation forward. Why? Because it is the only health care reform that has any chance of passing.

Many myths have grown up around Obamacare and the Republican repeal and replace effort. Over time, we have forgotten that Obamacare was not passed by a budget reconciliation. “HR 3590, the Patient Protection and Affordable Care Act,” was passed on Christmas Eve 2009 after a cloture vote by 60 Democrats ended a Republican filibuster. It was a traditional bill that requires a traditional bill to repeal.

So, what was the controversy about the budget reconciliation? After Scott Brown (R-Mass.) was elected to the Senate, the Democrats could no longer break Republican filibusters. If the Democrat-controlled House amended the ACA, it would be subject to another cloture vote, which the Democrats would lose. The answer was to have the House pass the bill unchanged and use the budget reconciliation process to pass a second bill, “HR 4872, The Healthcare and Education Reconciliation Act,” by a simple majority vote. This bill was subject to the same limitations that the GOP now faces in passing their own budget reconciliation.

Even though Republicans hold the presidency and control both houses of Congress, they were not granted a blank check by voters. A full repeal would require 60 votes for cloture in the Senate and there are only 52 Republicans. The mathematical problem is obvious.

But what about the 2015 repeal bill that was vetoed by President Obama, you may ask. Republicans didn’t have 60 votes in 2015 either, but they passed a repeal bill then. Why can’t they do it now?

The answer is that the 2015 repeal bill was not a full repeal either. The 2015 bill, was also a reconciliation bill that carried the unwieldy title, “HR 3762 To Provide for Reconciliation Pursuant to Section 2002 of the Concurrent Resolution on the Budget for Fiscal Year 2016.” The text of the bill states in Section 102 that the ACA “is amended,” not repealed.

If the 2015 bill was better that the AHCA of 2017, it is for two reasons. First, there were 54 Republicans in the 114th Congress where there are only 52 now. The GOP could afford to lose more votes in the Senate in 2015 that it can today.

Second, four Republican senators who voted for the 2015 bill now say that they won’t vote for a bill that does not provide for a phase out of the Medicaid expansion. Sens. Rob Portman (Ohio,) Shelley Moore Capito (W.Va.), Cory Gardner (Colo.) and Lisa Murkowski (Alaska) refuse to back the same bill that they voted for two years ago. Sen. Susan Collins (R-Maine) voted against the 2015 bill and would presumably do so again. Other Republicans are reluctant to repeal the popular provision concerning pre-existing conditions. It is these five senators and House moderates, not the Republican leadership or President Trump that are forcing a more watered-down version of the bill.

Some conservatives suggest that Republicans should get rid of the filibuster to pass a repeal. We wouldn’t need 60 votes then and the Democrats will probably kill it anyway the next time they have a majority, they argue.

The problem with this strategy is that full repeal could not even win a simple majority vote. The five Republican defectors in the Congress and the Tuesday Group of 50 Republican moderates in the House would kill it.

Removing the filibuster would also mean that Democrats would only need simple majorities to replace Republican health care reform with a national single-payer system the next time they control both houses of Congress and the presidency. It would also usher in a host of other bad ideas from gun control to a higher minimum wage to higher taxes to onerous regulations on practically everything. It is true that Democrats might one day choose to remove the filibuster, but it is certain that if Republicans remove it now, for no strategic reason, Democrats will have a field day when they return to power.

What, then, are the options for Republicans on Obamacare? One option is to wait and hope for a filibuster-proof majority. If you favor this option, be aware that the last time that Republicans had a 60-vote majority was the 61st Congress from 1909 to 1911. It is extremely likely that before the Republicans get a supermajority, Obamacare will implode, health insurance premiums will skyrocket, insurance companies will cancel policies and hell will freeze over. I have little doubt that if Republicans hold out for the perfect, full repeal bill that I will die of old age with Obamacare still intact. (I’m only 45.)

Waiting until 2018 might give the Republicans a few more votes to craft a better compromise. It is also possible that two years into the Trump Administration, voters might deliver a rebuke to Republicans in the form of Democrat majority in either the House or Senate that makes any sort of conservative impossible. In any event, it is doubtful that the numbers would change enough in the GOP’s favor to justify putting off a cornerstone promise of the campaign for two years. The longer Republicans wait to take action, the more entrenched Obamacare will become.

A better option is to take baby steps toward the full repeal of Obamacare starting now with the AHCA. The current bill has the support of moderates as well as the Freedom Caucus and has decent chance of becoming law. While far from ideal, it is a reasonable bill that can hopefully be improved further in its journey through the Senate. Even if it became law in its current form it would mark a vast improvement over Obamacare.

The Republican reform bill should not be viewed as a final step, but as a first step toward total repeal. Without a supermajority, it may take years of nibbling at the edges of Obamacare to fully repeal the behemoth, but conservatives have to start somewhere. The logical place to start is the bill that has the support of the two disparate factions of the GOP. The only bill that has a chance of becoming law.

Conservatives must decide whether it is worth trading a chance to gut Obamacare now to wait for a perfect bill in the distant future. The answer should be obvious. We should not allow the perfect to be the enemy of good and the possible.

Seize the day and start saving American healthcare!




Ending Filibuster Would Be Short-Sighted

President Trump tweeted yesterday morning that voters should “either elect more Republican Senators in 2018 or change the rules now to 51%,” implying that the Senate should go nuclear once again and completely eradicate the filibuster rule. Senate Majority Leader Mitch McConnell (R-Ky.) was quick to respond.

“That will not happen,” McConnell told The Hill and other reporters as he rejected the president’s idea out of hand.

<blockquote class=”twitter-tweet” data-lang=”en”><p lang=”en” dir=”ltr”>either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good &quot;shutdown&quot; in September to fix mess!</p>&mdash; Donald J. Trump (@realDonaldTrump) <a href=”https://twitter.com/realDonaldTrump/status/859393829505552385″>May 2, 2017</a></blockquote>

<script async src=”//platform.twitter.com/widgets.js” charset=”utf-8″></script>

The filibuster, originally a Dutch term for pirates, goes back to the early days of the Senate per the Senate website. The filibuster was well established by 1841 when Henry Clay (Whig-Ky.) threatened to change Senate rules to allow the majority to vote to end debate. Clay was rebuked by Thomas Hart Benton (Democratic-Republican- Mo.) for his attempt to stifle the Senate’s tradition of unlimited debate.

The Senate did weaken the filibuster in 1917 when adopted Rule 22 which established a cloture vote. A vote of two-thirds of the Senate could end debate on a bill. The filibuster reached its current form in 1975 when the number of votes required for cloture was reduced to 60.

“There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar,” McConnell said, adding that the move would “fundamentally change the way the Senate has worked for a very long time. We’re not going to do that.”

Removing the filibuster is tempting for some Republicans due to the slim GOP majority in the Senate. With only 52 Republican senators, at least eight Democrat votes are required for cloture on most bills. The need for cloture is a roadblock to much of the Republican reform agenda. In particular, Democrats are united against the repeal of Obamacare.

Nevertheless, elimination of the filibuster would be a double-edged sword that Republicans may soon regret. Over the past 100 years, the Democrats have controlled the Senate more than Republicans and the filibuster has enabled the GOP to halt Democrat action on many issues from gun control to cap-and-trade to public option health care. Without the filibuster, there would be no fail-safe the next time that Democrats hold a congressional majority.

“The rules have saved us from a lot of really bad policy,” said Senator John Cornyn (R-Texas). “I know we all are into short-term gratification, but it’s a real mistake, I think, from a legislative standpoint.”

Senator Orrin Hatch (R-Utah) agreed. “Had we not had the filibuster, this country would have been gone a long time ago, gone straight to socialism,” he said on CNN.

Last month, Senate Republicans eliminated the filibuster for Supreme Court nominees, but a majority of senators say that further rule changes are unlikely. A bipartisan group of 61 senators sent a letter last month to Senate Leaders McConnell and Schumer (D-N.Y.) stating opposition to further changes. The Hill reports that Senators John McCain (R-Ariz.) and Susan Collins (R-Maine) have announced that they would oppose further changes. With two GOP senators already standing against elimination of the filibuster, any further defections would doom the plan.

For now, the filibuster appears safe, but pressure from the conservative base continues to mount and angry voters are urging Republicans to get things done with their majority. As frustration over Democrat obstructionism increases, calls to eliminate the filibuster will likely increase as well.

The Filibuster: McConnell’s Excuse for a Do-Nothing Congress

The Republican Party isn’t so good at governing, but when it comes to making excuses they have no peer.  They’re like a less-believable version of John Belushi near the end of The Blues Brothers, mud smeared on their faces and pleading for their political lives, while GOP voters demand to know why the same guys they sent back to Congress to repeal Obamacare and defund Planned Parenthood didn’t show up like they promised.

The latest episode comes to us courtesy of the new omnibus budget cobbled together by Congress, which really isn’t a budget at all but another continuing resolution to keep the government–plus all of the pork projects and and special-interest favors K Street lobbyists could sneak in there–funded through the end of the fiscal year.  Strangely enough, with all the cash appropriated for Planned Parethood’s abortion business and sanctuary cities that flout federal immigration law, there isn’t a penny to be found for the border wall.  If I didn’t know better, I’d swear that the Democrats were still running Capitol Hill.

President Trump addressed this rather pathetic state of affairs with a couple of tweets:



To which Senate Majority Leader Mitch McConnell promptly responded, “No way, Jose.”

Asked if Republicans would nix the 60-vote filibuster to allow legislation to pass by a simple majority, McConnell told reporters, “That will not happen.”


“There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar” on legislation, McConnell said during a weekly press conference.

No, Mitch, but there is an overwhelming majority of voters who are very interested in changing the way the Senate–and all of Washington, for that matter–does business.  That’s why they sent Donald Trump to the White House.  They figured that with a Republican president, we’d finally be able to get some of that legislation you said you supported signed into law.  But what do they get?

That’s right.  More excuses.

To be sure, I fully understand the reluctance to do away with the legislative filibuster–and I also acknowledge the balls McConnell showed when he nuked the filibuster for Supreme Court nominees so that Neil Gorsuch could be confirmed.  The Senate is supposed to be the place where red-hot legislation from the House goes to cool off for a while, and the filibuster is one of the tools that makes such things possible.  It’s like an Electoral College for bills in the Senate, which keeps a slim majority from running roughshod over the minority.  Because of that, I don’t think that doing away with the filibuster would be a wise choice either.

But what if McConnell is just using that as another excuse?

Think about it.  The only reason this even came up is because the GOP, inexplicably, refuses to allow the Democrats to force a government shutdown.  Sure, the media would blame Republicans for it–but they blame Republicans for everything anyway, and with the White House under GOP control they could see to it that the public doesn’t even feel the effects of a shutdown.  Instead, they’re acting as if it’s the worst possible thing that could happen, even though their voters have expressed full support–and the history of past shutdowns suggests that it won’t cost the GOP votes in the 2018 midterms.

But you know what will cost them votes?  Caving in to Democrat demands.  That would only make voters throw up their hands and wonder why they bother voting Republican in the first place.

And maybe that’s the point.

It’s no secret that Washington hates Donald Trump and the threat he represents to the way things get done there.  That hatred includes a good number of Republicans, who seem indifferent to Trump’s agenda in some cases and actively hostile in others.  What if those Republicans think that sacrificing their majority would be the best way to ensure that the Trump administration ends in failure, so they can get back to business as usual?

Maybe that sounds a little farfetched, but I wouldn’t put it past them.  This is the same gang, after all, that passed repeal after repeal of Obamacare knowing full well that Obama would use his veto pen–but then balked when they got a Republican president who would actually sign it.  They’ve engaged in failure theater before.  There’s no reason to think they wouldn’t do it again.

The only way for Trump to respond to this is with a veto of his own.  Don’t sign this monstrosity of a budget, Mr. President.  Because if you do, it will have been the Republicans–not the Democrats–who rolled you.

Republicans May Not Pass Tax Reform Now. It’s a Feature, Not a Bug.

Republicans are beginning to drop hints that they are not going to get tax reform passed, having now not passed Obamacare repeal. They have too many internal factions, let alone getting Democrat assistance. Now, as some Republicans call for the abolition of the legislative filibuster, we should remind ourselves that all of this is a feature, not a bug.

The founding fathers and those who came after them made it ridiculously hard to get anything other than a post office name change passed through Congress. The filibuster is but one part of it. Having a majority of the majority party with a majority in each house as well is part of it. Balancing federal and state concerns is another. Ensuring the constitutionality of the legislation is yet another concern. Getting the President on board is another matter altogether.

It is hard to get things passed and the real genius of our system is that the more divided we are as a nation the harder it is to get anything big passed through congress. That frustrates both sides, but that inability to pass anything means that when something is passed it really is something the public supports.

Republicans are now as frustrated as Democrats were for the last eight years. Good.

It is useful to remind all sides that gridlock is good. It keeps our rights protected from the lobbyists and congressmen in Washington. That the Congressional Review Act legislation can sail through is a good check on the bureaucrats who try to govern us when Congress does not.

Stop fretting about government not doing something. The desire to “just do something” is what gets 90% of all bad legislation passed.

The less Congress does, the better off we all are. We have fifty states. They can and should be doing the heavy lifting. We are seeing that with California’s healthcare proposal and New York’s free college tuition plan. Let the great laboratories of democracy sort out the nation’s ills and keep Congress gridlocked.

Trump: Health Care Reform Before Tax Reform

After the failure of the Republican health care reform bill, there were indications that the Trump Administration intended to put health care on the back burner and move along to tax reform. Treasury Secretary Steven Mnuchin set an August deadline for passing tax reform, but now President Trump has apparently changed his mind, telling Fox Business that health care reform must come first.

“I have to do healthcare first, I want to do it first to really do it right,” Trump said in an interview Tuesday on the cable channel.

“We’re saving tremendous amounts of money on health care when we get this done, number one, and most importantly … we’re going to have great healthcare, and all of that savings goes into the tax,” Trump said. “If you don’t do that you can’t put any of the savings into the tax cuts and the tax reform.”

The change in priorities may be due to Trump’s decision to scrap the tax reform plan from his campaign and start over from scratch. Fox News reported that White House aides say that the goal is to cut tax rates to spur growth, but alternative ways of raising revenue have not been decided. Two options reportedly being considered are a border adjustment tax on imports and modified version of the border adjustment that would cut corporate taxes and eliminate much of the payroll tax. The resulting plan is similar to a value-added tax that would be in line with WTO rules. Eliminating payroll taxes would require creating a new source of funding for Social Security.

In reality, health care reform and tax reform share the same obstacles. Both are hampered by a divided Republican Party that holds a razor-thin majority in the Senate. Unless Senate Republicans go nuclear again to eliminate the remainder of the filibuster rule, at least eight Democrats will need to vote for cloture to advance any bill. If any Republican faction splits off from the rest of the party on a bill, the number of required Democrat votes increases.

The requirement for Democrat votes limits the extent of conservative reform that can go into a bill. If a bill goes far enough right to please the Freedom Caucus and Tea Party Republicans, then it loses support from moderate Republicans and is almost certain to be filibustered by Senate Democrats. On the other hand, if a bill isn’t conservative enough, it loses support of Congress’s conservative reformers.

There are stark differences between Republicans and Democrats on both reform packages, but ultimately compromise will be needed to get enough votes to pass any bill. While some elements of health care and tax reform can be packed into a reconciliation bill that is not subject to filibuster, full reform or repeal of Obamacare requires 60 votes for cloture in the Senate.

A possible solution is to simply eliminate the filibuster entirely. Republicans could pass their wish list relatively easily if bills were not subject to cloture votes. There are two obvious problems with this strategy.

First, the Republicans only have a two-vote majority in the Senate. There would be tremendous pressure on moderate Republicans like Susan Collins (R-Maine), Rob Portman (R-Ohio) and Lisa Murkowski (R-Alaska) to break ranks and vote with the Democrats. Bills would have to be watered down to prevent their defections.

Second, if Republicans eliminate the filibuster, they will get a taste of their own medicine the next time the Democrats have a majority. One day soon, the filibuster might be all that stands between a Democrat majority and gun control, single-payer health care, a $15 minimum wage and the rest of the liberal wish list.

The filibuster puts the brakes on legislation, conservative and liberal, Democrat and Republican. That’s a good thing and Republicans should learn to deal with it. The resulting bills may not be everything that conservatives want, but incremental change in the right direction is better than risking a full-court liberal press four years from now.

For now, it seems that no health care reform or tax reform is on the immediate horizon. It may be months before either the second attempt at health care or tax reform is ready. After eight years in the wilderness, conservative voters are unlikely to be very patient.