Neither Republicans nor Democrats respect Senate rules

(Editor's Note: This piece first appeared in the Washington Examiner on August 23, 2019.)

Kentucky Sen. Mitch McConnell, has a word of warning for Democrats: Don’t scrap the filibuster.

In a recent op-ed, the Senate majority leader writes that his Democratic colleagues will undermine the “constitutional order” if they use the nuclear option after the 2020 elections to end a senator’s ability to filibuster, or debate, legislation.

The term “nuclear option,” as used here, refers to instances in which a majority of senators use their power under the Constitution to ignore, circumvent, or change the Senate’s existing Standing Rules with a simple-majority vote in direct violation of those rules.

McConnell also predicts that Democrats will eventually come to regret scraping the filibuster.

Whatever the merits of keeping the filibuster, McConnell’s argument for doing so is illogical and inconsistent. The parliamentary fireworks that we have witnessed in the Senate over the last three years suggest that neither Republicans nor Democrats have much respect for the institution’s rules. This experience suggests that both parties are just as likely to use the nuclear option in the future.

The frequency of the nuclear option signals a growing ambivalence among senators about the importance of following the rules. Prior to 2013, Senate majorities used the controversial maneuver only rarely. But in November of that year, Democrats used the nuclear option to scrap the filibuster for all presidential nominations other than those for the Supreme Court. Senators have since used the nuclear option more frequently. In 2017, Republicans used it to scrap the filibuster for Supreme Court nominations. Republicans used it again in 2019 to shorten the amount of debate time allowed by Senate Rule XXII after senators have voted to invoke cloture on a nominee but before they vote to confirm the nominee.

Rule XXII states explicitly that a motion to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate” requires an affirmative vote of “three-fifths of the senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.” In 2013, 2017, and 2019, Democrats and Republicans violated the rule by using the nuclear option to exempt certain presidential nominees from its explicit requirements to end debate under cloture and to limit post-cloture debate time without following the procedures established by the rule. In each instance, senators used the nuclear option to create a new precedent that was inconsistent with Rule XXII’s explicit requirements.

In short, they broke the rules.

McConnell contends that Republicans in 2017 and 2019 were merely adhering to the rules that Democrats established in 2013. But Democrats did not change Rule XXII when they used the nuclear option that year, and Republicans did not change it in 2017 or in 2019. Rule XXII still requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to end debate on presidential nominations. And it still stipulates that senators shall have up to 30 hours of debate time after they have voted to invoke cloture on a nominee.

Instead, senators ignored Rule XXII in 2013, 2017, and 2019. Consequently, Republicans are just as guilty of undermining America’s “constitutional order” as Democrats. Moreover, Democrats and Republicans will continue to violate Rule XXII every time they choose to follow the precedents established in those years.

In other words, there was no one first act of violating Rule XXII that legitimizes all subsequent violations. Senators will break the rule every time they choose to ignore its provisions moving forward.

McConnell overlooks this in an effort to shirk his responsibility for the Senate’s present dysfunction. In reality, Republicans are just as willing as Democrats to “vandalize” the Senate’s rules for “short-term gain.”

However, McConnell is correct in one crucial respect. “America needs the Senate to be the Senate.” He can protect America’s “constitutional order” by letting senators be senators.