Editor’s Note: Thomas M. Boyd, a former assistant attorney general in the Ronald Reagan administration, is a partner in the Washington office of DLA Piper, LLP. The opinions expressed in this commentary are his own.
Thomas Boyd says President Trump can rally support for his priorities through Twitter
President could benefit from the help of Senate Republicans, if they hold Democrats to traditional filibuster methods, Boyd says
When Donald J. Trump took the oath of office last week, he was greeted by a new 115th Congress that represents the largest Republican congressional majority to welcome an incoming Republican president in nearly a century. Only two recent Republican presidents – George W. Bush and Dwight D. Eisenhower – entered office with both House and Senate majorities, each of them by the slimmest of margins.
The year, however, will be about more than numbers. In many ways, it will be about whether a President Trump and the Republican congressional majority can force votes on reforming Obamacare and Dodd-Frank, as well as introduce sanity into the fog of regulations that have hindered economic growth for the past eight years. And to do that, it may necessitate blending the power of social media with an “obsolete” parliamentary tool called the filibuster to better inform voters and contribute to political transparency.
Let’s begin with the headcount. Trump will have a Senate majority of 52 Republicans; the Democratic minority will total 46, with two independents who caucus with them, including the peripatetic Bernie Sanders of Vermont who, having lost the presidential nomination during his trial run as a Democrat, has since reverted to his previous status as an independent.
In 2018, the next congressional election cycle, 25 Senate Democrats, including both independents, will be facing re-election (compared to eight Republicans). And 10 of those Democrats come from states that supported Trump in November. Depending on how they vote, and the extent to which their party unites to oppose Trump’s legislative agenda, the prospect that Republicans might have a net gain of eight seats, and with it a filibuster-proof majority of 60 for the last two years of Trump’s first term, is not outside the realm of possibility.
Whether this becomes more than an academic discussion depends upon how President Trump handles himself and the myriad sticky issues likely to face him the next two years. Even though Twitter has a brief history, Trump, like no one else in national politics, has mastered its use as a communications device.
As with most things, though, there is inevitably a good and a bad time and place to use it and its brethren in social media. Since it is unlikely that he will cast Twitter aside any time soon, one of Trump’s many challenges will be to discipline himself to know when to use it and when not to. Now that he officially occupies the Oval Office, his every utterance has an official effect.
But Democrats also have a role to play in determining the odds that Republicans can materially increase their majority in 2018.
In the Senate, the filibuster will be a frequently threatened parliamentary device to obstruct the Republican agenda. This traditional means of allowing the minority to obstruct the progress of legislation by talking endlessly about anything will remain the Democrats’ most viable and consequence free opposition tool – unless there is a consequence.
Senate rules require a vote of three-fifths of the Senate, or 60 senators, to shut down a filibuster, so on November 21, 2013, Sen. Harry Reid, D-Nevada, then the Democratic majority leader, chose to use his majority, voting as a bloc, to exercise what was called the “nuclear option” and he eliminated the availability of the filibuster as a means by which the then Republican minority could delay or oppose any of President Barack Obama’s many judicial and executive appointees. Republicans were outraged, and with that decision Reid and his party established a precedent that would allow an eventual Republican President, armed with a Republican majority, to use the “Reid rule” to his own advantage as well. And this a President Trump, with his new Senate majority, will surely do.
Legislation, and Trump’s nominee to fill the Supreme Court vacancy left behind with the death of Justice Antonin Scalia, are the only remaining circumstances that allow for the use of the filibuster. And Trump has pledged a lot of legislative changes to the Obama legacy.
Unfortunately, in the modern Senate, the old style of filibuster – whereby the objecting party must talk endlessly, around the clock, in order to obstruct a vote – is rarely practiced, and it carries with it virtually no political risk. All a senator has to do is object when a bill is brought forward for debate and a vote and, unless there are 60 Senate votes available to overcome the objection, the pending bill will virtually vanish from the agenda. Forcing an actual filibuster, both parties seem to have decided, simply takes too much time.
But in the wake of Reid’s precedent, maybe Republicans ought to up the ante, all in the interest of connecting directly with voters and letting them decide for themselves.
Today, voters no longer have to rely on the national media to inform them about what happens on the Senate and House floor; they can watch the action themselves, in real time on C-Span.
Just as Trump circumnavigates the press to communicate directly with the public via Twitter, so, too, can the public see for itself directly whether those objections expressed in a filibuster are rationally based or constitute politically motivated obstruction.
It might therefore be wise, in 2017, for current Senate Majority Leade Mitch McConnell of Kentucky to selectively force those who object to moving a bill, because they don’t have enough votes to defeat or amend it, to actually take up valuable floor time filibustering it.
And that would mean that opponents would have to take to the floor and explain, indefinitely and on national television, why a filibuster – and stopping the Trump agenda – is justified. Voters will be able to watch and listen to what is said and then decide for themselves whether their objections actually have merit or are merely an organized effort to frustrate and defeat that agenda.
The filibuster, once deemed so obsolete as to no longer be practiced, might now be resuscitated to fulfill its original purpose: enabling voters to see through the politics of arcane parliamentary process and place accountability where it justly resides.