Gorsuch is an Originalist. What’s That?
The fate of the filibuster, a Senate rule that protects the minority, will be decided this week and it’s about more than a Supreme Court nomination.
Senate Democrats said Monday they have enough votes to stop a “cloture,” or closing motion. Stopping cloture would mean that debate could continue indefinitely through the stalling tactic known as the filibuster. But Republicans say they are prepared to change Senate rules and push the nomination of Western conservative Appeals Judge Neil Gorsuch to a simple majority vote and certain confirmation.
If this happens, it is just a matter of time until the Senate tosses the filibuster for regular business and that would hurt the West and smaller states the most.
A generation-old debate over grazing fees and the relationship between westerners and the federal government shows how the filibuster protects the more sparsely populated rural West from the urbanized core of corporate America.
First, a history lesson on the filibuster. Initially, the Founding Fathers through the constitution created the House to represent the will of the people while the Senate — then chosen by state legislatures — would reflect state interests, ensuring that small states would not be overwhelmed by larger, richer ones.
Filibusters were rare — fewer than two dozen over the entire 19th Century — because to carry one out, debate had to go on continuously. But the threat of filibuster kept the majority in check and ensured that issues were fully examined.
Then, in 1913, the Constitution’s 17th Amendment was adopted, shifting the election of U.S. senators from legislatures to the people.
Once two-thirds of the Senate was elected by the people, it placed the first limit on the filibuster. Rule 22 allowed a vote to end debate if a two-thirds Senate majority agreed. Except in the 1939 movie Mr. Smith Goes to Washington, its use was tied to segregationists who used it to stop anti-lynching and civil rights legislation.
In 1975, the Senate reduced the cloture majority requirement to 60 votes. Slowly, its use grew more frequent as senators from all ideological sides saw it as a useful tool as the nation was becoming more polarized.
The election of Bill Clinton prompted Republican minority senators to routinely employ the filibuster to stop his initiatives, including Interior Secretary Bruce Babbitt’s 1990s rangeland reform legislation. At the heart of the bill was raising the fee for grazing on public lands from $1.86 for a cow and a calf per month to $3.85.
The proposal had broad support because eastern and private land cattle ranchers in states like Oklahoma thought the low fee was an unfair advantage that helped their western competitors.
But many westerners saw the initiative as a complete transformation of the relationship between the federal government and western states dominated by public land. They also saw it as a threat to the private property rights tied to water, federal permits and access to these lands for resource use.
I was covering these issues and was invited to Washington, D.C., in 1995 to speak to the People for the West, a collection of loggers, miners, ranchers and local officials who were pushing back on the victories environmentalists had won in court and in Congress. I was there to talk about the Henry’s Fork Watershed Council and Lemhi ranchers who were working with environmentalists to protect their common interests, the first wave of collaboration.
But speakers like late Nevada Rancher Wayne Hage, who was challenging federal grazing law, and his future wife, Idaho Republican Congresswoman Helen Chenoweth, who was challenging Babbitt’s policies head-on, were far more popular with this crowd.
I went to Idaho Republican Sen. Larry Craig’s office and was surprised at how personal former rancher Craig’s animus toward Babbitt and his proposals were. But Craig’s fellow Western Republicans like New Mexico’s Sen. Pete Domenici showed the same emotion on the floor of the Senate, repeatedly defeating cloture votes between 1993 and 1996 against legislation that had easily passed the House and would have had majority support in the Senate.
Eventually, Babbitt used his administrative powers to institute many of the reforms in a process that forced the Clinton administration to engage with local officials and the 27,000 ranchers whose lives were most affected. Those reforms are grudgingly accepted today.
Fast-forward to 2013, when Senate Majority Leader Harry Reid of Nevada announced that Democrats were going to change Senate rules to end the use of filibuster on all presidential nominations except the Supreme Court. Reid was prompted by Republicans blocking Obama nominees, but the change was first proposed by Republican Sen. Majority Leader Bill Frist in 2005. It is called “the nuclear option” because once used, the damage is irreversible.
Republicans this week are expected to extend the limit on filibusters to Supreme Court nominations. Both of Idaho’s Republican Sens. Jim Risch and Mike Crapo have said they will go along with their majority, even though they don’t like it.
I spoke with Risch Monday. He called the vote “very, very bad.” But since the Democrats started the ball rolling in 2013, he said, “we don’t have a choice.”
“Had they not done that, this would have been a choice,” Risch said. He knows how a Democratic majority would act in their place, he said, and he can’t back down. After all, the Idaho voters who sent him to Washington clearly want Judge Gorsuch on the Supreme Court.
Idaho may ultimately be one of the losers when the Senate further weakens minority interests. But arguing to preserve an obscure, insider procedure that eventually could undercut the long-term power of small states is hard to do compared to giving voters what they want today. But that was the reasoning the Founding Fathers used when they set up the Senate as a more deliberative, more state-centered body.
It’s a short way from eliminating the filibuster from presidential nominations to eliminating it for all legislation. “That becomes a dicier question,” Risch told me.
But it would take statesmen and stateswomen to rise above the polarized, money-soaked political landscape to reverse the momentum toward that end. It would take the two sides to reverse the 2013 decision and find a way past this tit for tat and move back to a time when the majority had more respect for the views and the roles of the minority.
I’m afraid I don’t see those leaders in this Senate.