2021-02-08 10:34:00 | Vice President Kamala Harris could kill the filibuster herself
It was 5:30 a.m. on Friday and all eyes were on Vice President Kamala Harris.
The Constitution has given Harris, as vice president, a second job — a side gig to most modern observers. She’s not just President Joe Biden’s No. 2; she’s also president of the Senate. And it’s not a role she should overlook. It may, in fact, be the key to transforming Biden’s agenda from notions into laws. In the right hands, in a Senate as closely divided as this one, it’s a job that can finally break the chamber’s famed deadlock and transform Washington.
On Friday, though, the Senate had just spent 19 hours going through what’s known all too cutely as “vote-o-rama” — an avalanche of nonstop debates and votes on amendments required to eventually pass Biden’s $1.9 trillion Covid-19 relief package. Several tired senators had held their heads in their hands as the final roll call started 10 minutes earlier.
“All right, should I do this?” Harris could be heard asking as her fingers reached for the small ivory gavel in front of her. With a nod from the Senate parliamentarian, Elizabeth MacDonough, Harris gave the gavel a short tap and performed the most visible role afforded to her under the Constitution.
“On this vote, the yeas are 50, the nays are 50,” Harris intoned. “The Senate being equally divided, the vice president votes in the affirmative, and the concurrent resolution as amended is adopted.” Scattered applause greeted her announcement.
Harris’ predecessor, Mike Pence, wound up casting 13 tiebreaking votes, a record for modern vice presidents. It’s a job he, Harris and every other vice president past gained in almost an accident of history, an afterthought role for an afterthought position. As the vice presidency was debated in the closing days of the Constitutional Convention, Roger Sherman of Connecticut worried that the officeholder “would be without employment” if the senatorial duties weren’t tacked on.
It’s not a gig that Harris apparently relishes at the moment, though. The Los Angeles Times reported in January that her advisers would prefer that Senate Democrats find ways to avoid her having to cast tiebreaking votes all that often. They are, in fact, “hoping the Senate duties don’t distract from her other responsibilities and priorities too much, hindering travel, dominating her schedule or interfering with her ability to become an active player in the Biden White House.”
But aside from her tiebreaking vote giving Democrats the majority, Harris is poised to be essential to one of the most pressing issues the Senate will confront this Congress: ending the filibuster. Senate Democrats have been considering getting rid of the arcane quirk of the rules, which stands in the way of the caucus’ agenda. The marathon of voting last week was the price for avoiding the 60-vote threshold to cut off debate on legislation that the filibuster otherwise imposes. If and when the time comes to nuke the filibuster, Harris would — and should — become the latest in a string of vice presidents to try to chip away at the filibuster’s power.
Harris would — and should — become the latest in a string of vice presidents to try to chip away at the filibuster’s power.
Her aides’ reported hesitancy to dwell too much on the Senate isn’t surprising given what the vice presidency has become. But in America’s early days, there was little of the hand-in-hand cooperation between the president and his running mate that we see in modern administrations. While Thomas Jefferson and Alexander Hamilton locked horns in George Washington’s Cabinet, John Adams was mostly confined to the legislative branch, sitting in on the first meetings of the newly formed Senate.
As presiding officer, Adams was to help guide the flow of traffic on the Senate floor, recognizing speakers and ruling on points of order and other procedural matters. “It is not for me to interrupt your deliberations by any general observations on the state of the nation, or by recommending, or proposing any particular measures,” Adams said when first addressing the Senate in April 1789.
But Adams didn’t stick to that promise for long. During one infamous early debate, he suggested that Washington hold the title of “His Highness, the President of the United States of America, and Protector of the Rights of the Same.” The suggestion was roundly rejected. After a year of Adams’ lectures to the Senate, he got a warning from a friend that he was making a lot of enemies with his interference. Adams in response said he had “no desire ever to open my mouth again upon any question.” This time he kept his word.
When he was Adams’ vice president, Jefferson also believed that his job was mostly legislative. “I consider my office as constitutionally confined to legislative functions, and that I could not take any part whatever in executive consultations,” he wrote to Rep. Elbridge Gerry in a 1797 letter. (Jefferson mostly used this argument “to decline other assignments from the president, such as a diplomatic mission, and to protect his leadership of the opposition party,” according to the American government scholar Harold C. Relyea.)
After the passage of the 12th Amendment, which had the Electoral College cast separate votes for president and vice president, the prestige of the office plummeted even further. Barring those who rose to the presidency, can you name any of the 22 vice presidents from the 19th century? (If you got more than three, you may qualify for a degree in American history.)
From the early 19th century to the early 20th century, the vice presidency was in a no-man’s land between the executive and legislative branches, with little incentive to take the job seriously. For example, Schuyler Colfax left the House speaker’s gavel behind to become Ulysses S. Grant’s first vice president. After having run the House, Colfax found the Senate “an easier body to preside over, leaving him with time on his hands to travel, lecture, and write for the press.”
The vice presidency began moving more firmly into the executive branch in the 1930s. But it never has shaken its legislative duties.
After having run the House, Colfax found the Senate “an easier body to preside over, leaving him with time on his hands to travel, lecture, and write for the press.”
Years before the Watergate complex was been built, Richard Nixon had been one of the most influential vice presidents to date, helping develop foreign and domestic policy under Dwight D. Eisenhower. At the time, the filibuster was an even more powerful weapon. Cloture, the process of cutting off debate to move to a vote, required two-thirds of the Senate to vote in the affirmative — and a two-thirds majority was needed to change the rule. Southern senators used this supermajority requirement to block civil rights bills that had passed the House by wide margins.
In 1957, when Nixon presided over the opening of the new Congress, he expressed his opinion that under the Constitution, a majority of the Senate could change the rules at the start of a new session. Longtime Senate Parliamentarian Floyd Riddick would later imply that despite having spent 40 hours talking with him ahead of time, Nixon still went against what his office’s recommendation.
While the proposed changes failed, they helped Senate Majority Leader Lyndon B. Johnson, D-Texas, persuade Southerners as a bloc not to filibuster the 1957 Civil Rights Act. It was also a reminder that the parliamentarian’s recommendation isn’t necessarily binding on vice presidents.
Nearly 20 years later, it was Nelson Rockefeller who finally oversaw the dropping of the filibuster cutoff to 60 votes — sort of. Rockefeller was presiding over the Senate in 1975 when a resolution to amend the cloture rule was introduced. Against the parliamentarians’ recommendations, he ruled that the measure could be enacted with just a majority.
The resulting debate wound on for days, with Sen. James Allen, D-Ala., putting up the staunchest fight. Finally, Rockefeller began ignoring Allen when he rose to speak, kneecapping the senator’s efforts. The choice wasn’t a popular one among some senators, even his fellow Republicans. “At the time, there was some public comment about reprisals by some Republicans, including a threat to vote against the president’s veto of legislation to suspend his oil import tariff,” The New York Times reported.
Eventually, the Senate’s leadership reached a compromise in which it essentially voided Rockefeller’s ruling, agreeing to reduce the vote requirement to 60 while leaving a two-thirds vote requirement to change the standing rules in place. The precedent that Rockefeller set may have been voided — or may not, there’s some debate still — but nobody questions whether he had the power to rule the way he did.
Harris might be reluctant to go that far, an aide suggested when speaking to The Independent last month. “It would certainly be possible, but I would find it highly unlikely that Joe Biden’s vice president would do such a thing,” the aide said of Harris’ unilaterally pushing through a rule change. “Because the story would clearly be written that she ignored the parliamentarian’s advice … and Biden is not going to want to govern that way, and neither will Harris, in my opinion.”
That would be a mistake, in my opinion. While some parts of the stimulus relief package will be able to pass through budget reconciliation, other parts of Biden’s agenda absolutely won’t. Senate Minority Leader Mitch McConnell, R-Ky., is often considered to have the most knowledge about the Senate’s rules on the floor, and he has already promised to gum up the works whenever possible to prevent Democrats from moving ahead without Republican consent.
Harris should be ready and willing to use the powers she has to steer the Senate, if need be. I’m particularly taken with the idea that lawyer and author Thomas Geoghegan suggested in a 2010 New York Times op-ed: If the votes aren’t there to change the rules, the vice president…
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