Trump doesn’t need 60 Senate votes to fix the border and short-circuit a shutdown

· December 21, 2018  
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President Donald Trump
Joshua Roberts | Getty Images

Last night, Chuck Schumer said at a press conference, “The Trump temper tantrum will shut down the government, but it will not get him his wall.” The truth is that if McConnell would actually lead and enforce the rules of the Senate, this decision wouldn’t be Schumer’s to make.

Thankfully, the president and the Freedom Caucus finally decided to stand up to the establishment and discovered the facts that Trump has a veto pen and that Republicans still control the House. The president threatened a veto of the open-borders budget, and as I’ve long predicted, the House dutifully passed a budget bill with $5.7 billion for the wall. It would have been nice if this had been done weeks ago, and it would be helpful if they included fixes to the asylum loopholes, courts, and sanctuaries as well, but I’ll take this.

Don’t we need 60 votes to pass this, you might ask? The answer is very simple. If McConnell and his colleagues actually used the Senate rules and fought for our sovereignty with the same vigor with which they fight for Supreme Court justices, the border wall could prevail.

There is a big misconception that it takes 60 votes to pass anything in the Senate. That is not true. The reality is that the majority party controls the “chair,” aka presiding officer, and the majority gets to rule on motions with simple majority votes. A bill can also be passed with a simple majority, eventually. Where the 60-vote threshold comes into play is only if Democrats choose to hold the floor and continuously engage in debate. To shut off debate without any tedious brinkmanship, yes, it takes 60 votes (or procedural unanimous consent) to proceed to the bill. However, given that this is the end of the line for GOP trifecta control, there is no greater issue than border security, and Democrats will be made to look like the ultimate obstructionists on behalf of illegal aliens and drug cartels, isn’t it worth it to finally force them to engage in a talking filibuster until they relent?

Here’s how it works.

Senators don’t need unanimous consent to bring up a bill. The lack of unanimous consent or 60 votes doesn’t table a bill. It’s just that opposing senators in the minority can request to be recognized and continuously hold the floor. In recent years, majority parties have never made the minority do that. Sometimes it makes sense to pre-emptively achieve an agreement because the majority just can’t afford to chew up endless days on debate of a single issue. But sometimes there are issues worth fighting for. Either way, this is the end of the line for the 115th Congress.

How do you get Democrats to stop talking? This is where Senate Rule XIX, “the two-speech rule,” comes into play. The rule explicitly prohibits individual senators from speaking “more than twice upon any one question in debate on the same legislative day.” Given that Republicans preside over the chair and control the floor, they can refuse to officially adjourn, opting only to recess temporarily, and keep the Senate in the same legislative day indefinitely. This will ensure that even the Democrats who are willing and able to speak for a long time will eventually be forced to relent.

This never happens and is never enforced, because Republicans never force Democrats to hold the floor in the first place and McConnell simply won’t bring up legislation without a unanimous consent agreement or without 60 votes to ultimately shut off debate. But if he forced the minority to hold the floor and enforced Rule XIX, Democrats would exhaust themselves very quickly. This is a strategy laid out by James Wallner, an expert on Senate procedure who is currently completing a manuscript on the history of the Senate.

Wallner points out that Democrats do have the ability to challenge rulings of the chair and bring up points of order or call for quorum calls as means of prolonging their floor time, but Republicans can dispense with their motions with 51 votes. Eventually, Democrats would run out of steam and exhaust their two speeches per member. This would theoretically take several days or weeks, but it all depends on the determination of each side. If Republicans keep them in session day and night and over the weekends and make them hold the floor, Democrats would eventually run out of options to block a majority vote to proceed with the border wall funding continuing resolution.

This strategy is even stronger in optics than in the raw technicalities. Actually forcing Democrats to publicly hold the floor in such a dramatic and unusual way, particularly on a government funding bill, will make the Democrat speech-givers look like utter fools and obstructionists during Christmas. It’s always conservatives who look bad on funding fights, because Republicans and Trump always pre-emptively surrendered. They never bothered to pass a good bill and dare Democrats to block it. This time, however, they finally passed a good budget bill out of the House. If McConnell would bring it up on the Senate floor and rigorously demand its passage with the president ready to sign it – while Democrats are virtue-signaling like clowns for hours on end in front of the cameras – the optics would be terrible for Democrats.

A committed Republican Party could use control of the chair to grind down Democrats even more while also exposing their radicalism. The chair could enforce a germaneness rule against senators bringing up extraneous matter to the question currently before the Senate, in this case, the House budget bill. Wallner explains the utility of such an approach as follows:

They would be prohibited from using their floor time during the first three hours of session to discuss unrelated issues. On a point of order, the Chair may call the filibustering Senator to order and force the member to take his or her seat. At that point, the member will have thus used one of his or her two speeches. While the Chair’s ruling is subject to appeal, the appeal can be tabled by a simple majority vote.

I would add, in the context of this debate, that forcing them to stay on topic would make Democrats stand before the American people and demonstrate that they are engaging in a Christmas filibuster on behalf of people invading our country with violence.

Wallner, in his strategy originally designed to confirm nominees, lists several other ways the majority can speed up the expending of each minority member’s two-speech allotment.

The bottom line is that with control of the chair, 51 votes, and sheer conviction (and coffee), a majority party can assert its will, especially with the pressure of a minority filibuster causing a government shutdown. This is how the civil rights bills passed. Republicans with convictions should recognize that having sovereign borders is the civil rights issue for all Americans, rooted in the entire social compact underpinning our federal government.

But the operative condition here is “conviction.” Republicans officially control the chair and have 51 votes, but they lack conviction. In reality, this is not a 60-vote problem; it’s a 51-vote problem. Conservatives have nowhere close to even 51 votes, and that includes leaders like McConnell. They couldn’t care less about our sovereignty and safety. McConnell was busy attacking Trump last night over the resignation of Secretary Mattis rather than pounding Schumer over the border and challenging him to a Senate procedural duel.

President Trump could embarrass McConnell by sending Vice President Pence to preside over the Senate, which is his constitutional right. He can have an allied senator get the ball rolling by calling up the bill instead of McConnell. Trump must remember that his entire presidency is on the line. This is his moment.  He must use the bully pulpit and every constitutional tool at his disposal to finally force a national debate over the integrity of our own borders.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.