A Test for Bush's Republican Majority

Introduction

Stiftung Wissenschaft und Politik German Institute for International and Security Affairs

A Test for Bush’s Republican Majority The “Filibuster”-Debate in the U.S. Senate

Michael Kolkmann SWP Comments

Six months after the re-election of President George W. Bush many observers wonder whether and to what extent the Republican majorities on Capitol Hill are reliable and durable. The issue gained significance following the battle about the confirmation of several judges that were nominated by Bush to the Federal bench; Democratic Senators opposed these nominations and tried to block them by using the parliamen- tary instrument of the filibuster. A bipartisan agreement brokered by moderate Senators and signed on 23 May 2005 temporarily resolved the explosive divisiveness and conflict potential of the judicial nominations. The filibuster debate was the first and potentially foremost test for President Bush to determine how far he can count on his legislative majority in Congress in the upcoming legislative battles.

The debate got heated when Democrats bloc. The filibuster debate presented a blocked the confirmation of seven judicial serious challenge for President Bush, nominees by Bush using the parliamentary because a successful filibuster would have instrument of the filibuster. A filibuster is slowed down or even prevented Senate typically an extremely long speech that action on Bush’s reform initiatives for his is used primarily to stall the legislative second term. process and thus derail a particular piece of legislation or a nomination introduced by the executive. The filibuster is possible Use of the “Nuclear Option”? because the legislative process in the Senate Republicans could decide to suspend the is governed by relatively liberal and flexible rules guiding the floor proceedings of rules—compared to the House of Represen- the U.S. Senate. It would take a Republican tatives. There is no limit in terms of time majority of just 51 votes to change the fili- or content to speeches made by Senators. 60 buster rule, thus eliminating the tradition- votes are necessary to end a filibuster. This al requirement of a Two-Thirds-majority seems to be out of reach for the Republi- when changing Senate rules. This step is cans under Majority Leader Bill Frist from called “nuclear option” because the con- Tennessee, since the current 55 Republican sequences for the political atmosphere in Senators usually do not vote in a uniform Washington would be extremely negative.

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1 The filibuster has been subject to criti- more heated, 14 Senators from both sides cism, because it gives small minorities, of the aisle worked feverishly behind the sometimes even single Senators, unpro- scenes to strike a bi-partisan deal. On the portionally large political leverage to slow evening of 23 May 2005, following days of down and ultimately disrupt the parlia- intense debates, both sides signed an agree- mentary business of the Senate. The op- ment that would prevent the use of the ponents of the filibuster rule criticize that a “nuclear option” for the time being. The minority of just 41 Senators can influence compromise reached contained the fol- the business of the entire chamber, prevent lowing elements: decisions and therefore negate the system  The Senate gets to vote on three of the of checks and balances spelled out in the U.S. seven candidates nominated by President constitution. Bush. So far, two judges have already The Senate Democrats announced in late been confirmed by the Senate by a April their intention to interrupt all busi- simple majority vote. ness in the Senate as long as the Repub-  The Democrats maintain the right licans intend to use the “nuclear option,” to block two other nominations in the since they perceive such a step as an ”abuse future by using the filibuster. of power” by the Republicans. From the  Two further nominations are dead, since Democratic perspective, this step would, they won’t get a vote on the U.S. Senate however, entail a significant risk of being floor. The names of these two candidates regarded by the public as obstructionists. are not mentioned in the bi-partisan The Democratic Minority Leader, Harry agreement. Reid from Nevada, switched to a different,  The White House is called upon to co- more nuanced strategy in early May; this operate more closely with the members time implying that the Democrats would of the U.S. Senate in the future in order introduce a dozen controversial bills into to prevent any disagreements concern- the parliamentary proceedings of the ing future judicial nominations. This is Senate and getting the Senate to vote on a demand that has repeatedly been made these bills, thereby forcing their Republican by Democratic Senators in the past. counterparts to confront a number of un-  Finally, the possibility to block future popular legislative choices: either to vote nominations, even a Supreme Court against publicly popular measures like nomination, remains untouched in raising the minimum wage or better “extraordinary circumstances.” benefits for war veterans in order to secure a fast vote on the judicial nominees or to vote for these measures and, at the same Possible Political Consequences time, risk a serious delay in dealing with The dilemma between the necessity to Bush’s judicial nominees. guard the political rights of the minority party as well as the right of the majority party to implement its political ideas is Compromise Reached by as old as the American republic itself. Moderate Senators The bipartisan agreement reached by the In mid-May 2005, President Bush renewed moderate members of the U.S. Senate his calls for bi-partisan support of the secures the prerogative of the Senate to give judges he had already nominated in his “advise and consent” to all judicial nomi- first term and asked the Senate to “give nations made by the executive branch of these extraordinarily qualified nominees government. From the Republicans’ point the up-or-down votes they deserve without of view, a controversy with the Democrats further delay.” While the public debate on concerning the use of the filibuster or even the use of the “nuclear option” got even a blockade of the Senate’s parliamentary

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2 business would have threatened any oppor- Generally, the filibuster agreement tunities for political cooperation between reached by the moderate Senators is too both sides in the upcoming weeks and vague to end the debate on the filibuster months. This might help to explain why issue once and for all. It will depend on the the White House mostly kept a low profile Democrats and their definition of “extra- during the filibuster debate. The admini- ordinary circumstances” that are a pre- stration refrained from public comments requisite to the future use of the filibuster and stressed that the filibuster was a prob- to determine whether the agreement can lem that had to be resolved by the Senators guide coming judicial nomination battles. themselves. Behind the scenes, however, The Republicans themselves will have to White House staffers seem to have pushed determine under what conditions they will Republican Senators to make sure that all not accept the definition of “extraordinary judges nominated by President Bush would circumstances.” Every single one of the 14 get up-or-down-votes on the floor of the U.S. Senators who signed the bipartisan agree- Senate. If the Republican side failed to ment, can declare the agreement void by get the judges confirmed, so the Adminis- invoking “extraordinary circumstances.” tration’s argument, the Republicans on It is safe to assume that the filibuster Capitol Hill risked to endanger their re- debate will be on the agenda again, once election prospects and therefore the Repub- President Bush nominates new contro- lican parliamentary majorities in both the versial judges, which he is expected to do House of Representatives and the Senate in in the coming months. Should the Supreme November 2006, because voters would Court’s Chief Justice, William Rehnquist, associate the Republicans exclusively with retire later this summer due to health the very public debate on the Terry Schiavo reasons, as many political observers expect, case, the repeated ethics lapses by Repub- Democrats will not yet be too alarmed, lican Majority Leader in the House, Tom because in all probability one conservative DeLay, and the debate over the use of judge would be replaced by another. the filibuster. Replacing a liberal judge with a conser- The compromise hammered out by vative judge, however, would be a com- the moderate Senators is a blow to Repub- pletely different scenario, because this lican Majority Leader Frist. Supported by development would tip the balance of the numerous conservative groups outside Court to the right, both in terms of content Congress, he one-sidedly focused on an all- and politics. Many significant Supreme or-nothing strategy. By stressing the goal of Court decisions over the last years and using the “nuclear option” too strongly and decades were cast by a 5:4 majority. With a too narrowly he had foregone the option new, more conservative majority on the of more tactical flexibility. This came to bench these decisions could be reconsid- haunt him when he realized he might not ered and eventually readjusted. get the necessary 51 votes to implement the “nuclear option.” It is too early to tell whether he runs the risk of becoming an Chances of Future Cooperation early lame duck in the year leading up to The Bush administration has not prevailed the election of 2006, since he announced in the filibuster debate, since it could not last year that he will not seek re-election manage to get Senate votes on every single in 2006. He might have great difficulty judicial nominee. Moreover, the instrument representing his political priorities in pur- of the filibuster remains intact and can be suing his party’s presidential nomination invoked in extraordinary circumstances in 2008 and to act as an effective Republi- by Senators in the future. The chances for can Majority Leader at the same time. passing central items of the second-term reform agenda of President Bush—whose

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3 public support, according to public opinion reform bill, Bush is in need of several polls has dipped to unprecendented lows Democratic votes, because he cannot in recent weeks—have only marginally count on support from all Republican increased. The filibuster debate has demon- Senators and Members. strated that Bush cannot automatically  In late May, 50 House Republicans joined count on the support of his party’s par- a majority of Democrats in voting for liamentary majorities. the lifting of federal restrictions con- Senators and House Members, who cerning stem cell research. This issue have to win the majority vote in their poses such a big challenge to Bush that districts, will not restrain themselves in he has already announced his veto, the upcoming election campaign 2006. On should the bill pass the Senate as well. the contrary, they will put the interests of It would be Bush’s first legislative veto their constituencies first, to take priority in his four and a half years in office. over those of their party or party leaders. Such a veto could only be overridden

© Stiftung Wissenschaft und The personal and district’s interests are too by a two-third majority in both congres- Politik, 2005 diverse to ensure that both parties can sional chambers. All rights reserved count on a European-style party discipline  In the near future, Congress will also SWP among their members. have to take up the issue of the Central Stiftung Wissenschaft und A currently rather heterogeneous Repub- American Free Trade Agreement (CAFTA), Politik German Institute for lican parliamentary group now faces a uni- a trade agreement between the U.S., the International and form Democratic caucus. It will be difficult Dominican Republic and five central Security Affairs for President Bush in the near future to American countries. CAFTA is seen as Ludwigkirchplatz 3−4 win Democratic votes for his reform an important step towards a Free Trade 10719 Berlin Telephone +49 30 880 07-0 agenda. More so than in his first term, Bush Agreement of the Americas (FTAA) Fax +49 30 880 07-100 will have to fight for support in Congress. that could cover all of Latin America www.swp-berlin.org [email protected] During his first four years in office, it was and the U.S. Severe reservations against sufficient for Bush to present a rather the trade agreement exist among general outline of his political projects, Congress members of both political while leaving the legislative details and the parties. fight for necessary votes to the Republican The most important test for Bush’s leadership teams in Congress. Now, Bush Republican majorities in Congress however will have to invest more energy, time and are the above-mentioned upcoming nomi- incentives if he wants to put to good use nations to the Supreme Court nomination. the political capital that he earned through The debate over the congressional confir- his reelection. Five policy areas in particu- mation of judicial nominees and the use of lar will present major conflict potential for the parliamentary instrument of the fili- Bush in dealing with Congress: buster, therefore, will continue to contain  In recent weeks, the Democrats repeated- huge conflict potential for the congres- ly blocked the confirmation of John sional agenda in the current legislative Bolton as the new U.S. Ambassador to the session, for the midterm election in Novem- United Nations. In addition, some Repub- ber 2006 and, finally, for the presidential lican Senators have expressed their reser- election in 2008. vations about Bolton’s nomination as well. A final vote on his confirmation is expected for mid- to end-June; the vote is currently too close to call.  The reform and privatization of Social Security is the centerpiece of Bush’s reform agenda for his second term. To pass his—as yet still largely unspecified—

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