Politics & Policy

Filibuster Jujitsu

How the GOP can use the filibuster loss to its advantage.

It may be that the best way conservatives can win an important political battle is to appear not to be fighting one. Harry Reid’s nuking of the Senate filibuster last week might provide the perfect opportunity.

Ideologues may not want to hear this, but bear with me. The American electorate desperately wants to see somebody important appear to put the public good ahead of partisanship. Surveys for years have made this clear. The first party to convincingly offer a constructive middle ground — somewhere, anywhere — will be the first party to start escaping the astonishingly low poll numbers that plague both sides of the aisle and both ends of Pennsylvania Avenue.

One big problem, of course, is that people of principle are justifiably loath to compromise principles, and a party’s base usually wants not more compromise but less. The trick is to somehow find a battlefield on which compromise is not synonymous with capitulation. Such battlefields are rare, but they do exist. And they certainly exist where the fight concerns process rather than policy. Compromising over a Senate rule hurts far less than compromising over something of absolute value, such as the right to life or the right to follow one’s conscience free from government mandates.

This is where the filibuster comes in. Last week’s radical use of the “nuclear option” was not, and should not be, the end of the Senate war over rules. Like John Paul Jones responding to the HMS Serapis, Senate Republicans have not yet begun to fight. But this is a fight where what appears to be compromise — like a willing exchange of pawns in chess, in search of greater positional advantage — can actually be offered in hopes of larger, later victories.

Here’s how it might work.

Senate minority leader Mitch McConnell and House speaker John Boehner should hold a primetime press conference and demand that the same networks that always drop everything for a presidential press conference (or, in Barack Obama’s case, press lecture) provide, this once, a chance for what amounts to equal time. They should announce the presser well in advance, and instruct all their caucus/conference members to sing off the same sheet music, demanding that the networks comply. Whether or not all networks comply, the concentrated effort will drive up public interest and attention. The point is to make clear that this is, in the immortal words of Vice President Joe Biden, a “big f—in’ deal.”

At the start of the conference, McConnell should, in terms as concise, clear, and dramatic as possible, explain what the filibuster is, why it’s important, and why Reid’s actions represent such a radical break with tradition. In doing so, he can acknowledge that Republicans in 2005 had considered the same step — in response to the completely unprecedented Democratic use of permanent filibusters to kill President George W. Bush’s nominations. What he would be doing is laying a predicate for the reality that battles over rules, unless checked, inevitably escalate.

Having concisely explained this background, McConnell should then welcome Boehner to the discussion. Together, they should lay out a series of draconian steps Republicans in both legislative chambers could and even perhaps should take, on both sides of the Capitol, to fight back against Reid’s high-handedness — and explain just how those steps could tie Capitol Hill even more in knots than it already is. They should also make clear that when Republicans retake the majority and the White House, they would have no compunction about ramming every nominee down the Democrats’ throats without regard to “holds” or any other parliamentary niceties. Explained correctly, these steps should, to the casual listener, sound justified by the familiar calculus of politicians using the best tools available to protect the just interests of the constituents they represent.

But here’s where the twist would come. Rather than announcing that they will indeed take these steps, they should call for an end to the escalation and a bipartisan compromise that advances the national interest. Appealing for the common good, they should say there is a way to walk back the drastic nature of Reid’s power grab while guarding against undue obstructionism — and that their model comes from current Democratic senator Tom Harkin of Iowa, along with former senator Joe Lieberman and 17 other former and current Senate Democrats. In short, Republicans would be citing Democratic path-setting, not some route of their own creation, for the escape from the hyper-partisan thicket.

What the 19 Democrats led by Harkin and Lieberman voted for in early 1995, and what Harkin still was pushing as recently as 2009, was to turn the group filibuster back into a tool for extended debate — to try to rally public support — rather than a means of permanent obstruction. By serially ratcheting down the number of votes needed to invoke cloture — from 60 to 57 to 54 to 51, on successive attempts — the rule in effect would force opponents of a bill or nomination to show that their arguments are gaining more adherents as time progresses, thus showing that they might actually gain the support of an awakening public.

That proposal (or one slightly modified from that) should be combined with a demand that Barack Obama, for once, show some magnanimity, by returning a judge-related favor to Republicans that President George W. Bush afforded Democrats several times in his two terms of office. In hopes of gaining partisan comity, Bush appointed to the bench some nominees originally proffered by Democrats: Roger Gregory to the Fourth Circuit, Barrington Parker Jr. to the Second Circuit, and Helene White to the Sixth Circuit — among a number of other, lesser compromises.

In short, McConnell and Boehner should demand that Obama appoint a prominent Bush nominee unfairly blocked by the Democrats — Miguel Estrada and Peter Keisler come to mind — as part of the price for the next part of their bargain. That next part would involve renouncing all the steps they could take now to make legislative life even more miserable, plus further rules changes to ensure that if Republicans retake the majority in the Senate, they won’t run roughshod over the newly minoritized Democrats’ rights. (Without getting too far into the weeds, let us posit that one change, which is technically feasible, would be to outlaw the very maneuver Reid used to change Senate rules in mid-session by challenging the ruling of the parliamentarian.)

The key would be to frame this compromise in the context of what Republicans otherwise could and would be willing to do, namely continuing to ratchet up the partisan knife play. To paraphrase a famous line of James Madison’s, the acceptance of the Harkin-Lieberman proposal would amount to use of a “Democratic remedy for the diseases most incident to Democratic government.” By offering a permanent solution, and permanent truce on filibuster rules, Republican leaders would be making a noteworthy attempt at a solutions-oriented compromise.

Note, however, that the benefits of such an offer go well beyond any potential gains procedurally or in the identity of judicial or executive-branch nominees. The main benefit of making such an offer is to secure public credit for the very public making of a reasonable and constructive offer. The game, or rather the very important political fight, isn’t about the filibuster; the fight is about gaining the political capital necessary to win public support for crucial public-policy battles (not to mention elections) to come.

Barack Obama and the Democrats likely will keep suffering politically because of the fallout from the disaster that is Obamacare, but Republicans and conservatives will not see their own ratings rise concomitantly until we regain the electorate’s trust as proponents of the broader public good rather than narrow partisan advantage.

Such a filibuster fix could, at virtually no cost in terms of politics or policy, put GOP leaders on the side of a public that is tired of bickering and eager for consensus.

Democrats probably won’t agree to this proposal — but if they don’t, they will look the worse for rejecting it, while Republicans will look better for having made the attempt. Political wars as well as real wars are won by taking the high ground, and if Republicans can sound the right tone while promoting this solution, they can start to reclaim those heights.

— Quin Hillyer is a contributing editor of National Review and a senior fellow for the Center for Individual Freedom.


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