During a news conference in early October, when few took seriously (enough) the possibility that Republicans would unify control of the federal government, House Speaker Paul Ryan held up a copy of the policy book he had compiled for House Republicans to run on. The major policies included in it—on taxes, on Medicare, on Obamacare, and the rest—were written in a way that would let them evade the filibuster once they hit the Senate.
“This is our plan for 2017,” Ryan said at a press conference last month. “Much of this you can do through budget reconciliation.” Legislation affecting the deficit requires only a simple majority to pass via the once-per-budget reconciliation process. Since many of the plans were “fiscal in nature,” Ryan said, he could lump them all into a reconciliation package. Republicans already test-ran a repeal of much of Obamacare through reconciliation in late 2015 that President Obama vetoed. For Ryan’s purposes, President Trump serves as a human pen—no more, no less—to sign his agenda into law.
And yet I’m detecting considerably less excitement from Ryan’s partners in the Senate Republican caucus to snap Ryan’s vision into law immediately. They may find a way to “blame” the filibuster, after all. In private, though, they may credit the filibuster.
This isn’t as counterintuitive as it might seem. If you’re a typical House Republican, you’re in political danger if you don’t immediately repeal Obamacare now that your party, controlling the White House and both chambers of Congress, is out of reasonable excuses. Your challenge would come from the right. Senators, though, have to win broader statewide races, and an abrupt curtailment of Obamacare or achievement of some other long-standing ideological aim might inspire backlash. And this may explain why, say, Sen. Lamar Alexander, chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, threw cold water last week on the idea that repealing and replacing Obamacare was something they could do overnight.
“Eventually, we’ll need 60 votes to complete the process of replacing Obamacare and repealing it,” Alexander told Talking Points Memo. “Before the process is over,” he added, “we’ll need a consensus to complete it, and I imagine this will take several years to completely make that sort of transition to make sure we do no harm, create a good health care system that everyone has access to and that we repeal the parts of Obamacare that need to be repealed.” While House Republicans may be comfortable dumping much of Obamacare through reconciliation before a replacement plan is settled, Alexander seemed to imply that they don’t want to toss the sucker out and leave American health care in a state of indefinite chaos that Republicans would own until they’d settled on a resolution.
If Alexander—the chair of the committee that, along with the Senate Finance Committee, will have the jurisdiction over repeal-and-replace—is saying that they’ll need to wait for a 60-vote consensus to finish the process, he is leaning on the filibuster to buy time for a process that will entail serious policy and political difficulty. We shouldn’t be surprised to see a senator lean on the filibuster. Because the filibuster is there not just to protect minority rights, but to protect the majority from having to follow through on the party’s most ideological goals.
The question of whether the legislative filibuster would continue to exist the next time a party unified control of the government appears to have been answered: It will. Republican Sens. Orrin Hatch, James Inhofe, Jeff Flake, and Lindsey Graham, to name a few, have all opposed eliminating the 60-vote threshold. Since the next Senate Republican caucus will likely have 52 members, they can lose only two on a vote to blow up the filibuster. The filibuster is safe, for now.
These Republicans will act like they’re doing Democrats a great favor by preserving their minority rights. But Senate Republicans are getting something out of it, too. The filibuster protects majorities from overreach just as surely as it protects minorities’ rights. There is going to be a lot of movement-fulfilling conservative legislation coming out of the House. It’s stuff that Republican Senators may agree with in theory but aren’t sure they want to live with politically.
The filibuster protects the majority, and if you want to know more, just ask the many, many Democratic senators from 2009 who are no longer in power. There is no filibuster to blame when you have a 60-member, filibuster-proof majority, as Democrats did from Sen. Al Franken’s seating in July 2009 to Sen. Scott Brown’s special election win in January 2010. It was during that window that Senate Democrats passed the health care bill that eventually became law. Regardless of your opinion of the law, its passage hurt Democrats in the 2010 elections as well as the post-implementation 2014 and 2016 elections. Democrats have gotten little political credit for its upsides, and all the blame for its downsides. If Republicans were to hastily repeal the law without a satisfactory replacement, they would get little credit for the upsides of repeal—however illusory they may be—and all the blame for repeal’s downsides. They would own health care.
So Paul Ryan thinks he could both eliminate Obamacare and “reform” Medicare in a single reconciliation package, only to find a senator like Lamar Alexander explain that they may well have to wait until they reach 60 votes, and Senate Democrats continue to assume blame for any bad news in the health care industry since Obamacare hasn’t yet been repealed. Senate Republicans, in ownership of nothing, quietly thank them for exercising their minority rights.