The collapse of Republican efforts to advance a revised health care bill has President Trump calling for the death of the last-remaining Senate filibuster. Whether that happens remains to be seen.
“The Senate must go to a 51 vote majority instead of current 60 votes. Even parts of full Repeal need 60,” Trump said on Twitter on Tuesday morning.
In past weeks, Senate Majority Leader Mitch McConnell has tried to rally support for a modified version of a House-approved plan that would only require 50 votes and a tie-breaking vote from Vice President Mike Pence. As of Tuesday, that effort fell short, leaving GOP leaders scrambling to find an alternative bill.
McConnell has said repeatedly that he wanted to have the Senate version of the bill approved using a process called reconciliation, which only requires a simple majority of votes. The reconciliation process lets the Senate bypass a filibuster, which requires 60 votes to invoke cloture, or a time-limit on debate, to advance legislation to the floor for a final vote.
But a full replacement or repeal bill for Obamacare, as referenced by President Trump, would like conflict with Senate rules (known as the Byrd Rules) that require a full-voting process for spending, revenue or public debt changes in a bill. Such measures are also subject to rulings from the non-partisan Senate Parliamentarian.
The filibuster has a long, colorful history in the Senate, but recent fights between Democrats and Republicans have eliminated filibusters for executive appointments and Supreme Court nominations. The only filibuster left standing is the legislative filibuster, which requires a cloture vote if a filibuster is invoked against any proposed legislation.
It remains to be seen if the Republicans can get the 50 votes needed in the Senate to advance any health care measures under reconciliation, but later this year, there are equally big fights on the horizon about tax reform and spending that could severely test the filibuster’s existence.
David Herzig, a Valparaiso University law professor, wrote about this conundrum last month for The Hill.
“If AHCA does not pass or is scored less than contemplated by the Congressional Budget Office, the lowered spending baseline the Republicans are relying on for permanent tax cuts disappears. This then would mean that any tax legislation would have to be revenue-neutral or also potentially fail the Byrd Rule,” Herzig said. That would leave the GOP majority in the Senate with two options: eliminate the filibuster or ignore the Senate Parliamentarian’s ruling on Byrd Rule violations.
On rare occasions, a Senate presiding officer has overruled the Parliamentarian. In 1975, for example, Vice President Nelson Rockefeller ignored advice from Senate Parliamentarian Floyd Riddick about the proper procedure for handing a vote about changing the Senate’s filibuster rules. For now, there may not be full support within the Senate GOP caucus to kill the filibuster. In May, McConnell said such an act “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,” McConnell stated.
And back in April, 61 Senators, including nine Republicans, formally opposed any effort to eliminate the legislative filibuster in a letter sent to McConnell.
Scott Bomboy is the editor in chief of the National Constitution Center.
