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Would Senate Republicans rather lose a Texas race and put their majority very much in danger this November or give up the 60-vote threshold for most legislation that they have championed for decades?
That’s the question with which Texas Attorney General Ken Paxton has — with the hammer of President Trump driving the wedge home — used to split the Senate Republican Conference.
First, the context. In the wake of last week’s Texas primary, all signs pointed to Trump endorsing incumbent Sen. John Cornyn in his runoff with challenger Paxton.
Paxton’s big, months-long lead in the polls had fizzled, and he ended up finishing second to Cornyn. It would, therefore, be hard to argue that Paxton had earned the presidential nod, despite Trump’s obvious appreciation for the Texan’s defiance in the face of a mountain of criminal, ethical and personal scandals.
Though it’s unclear that Trump’s endorsement alone would be enough to deliver the race for Cornyn, an endorsement plus some combination of carrots and sticks for Paxton might get him out of the race. This would be great for Republicans because a) Cornyn is the much better general election candidate against the Democrats’ surprise primary winner, state Rep. James Talarico, and b) It would save tens of millions of dollars that otherwise would be spent in a damaging runoff campaign.
It seems like Trump was persuaded, even brandishing one of those sticks against a defiant Paxton last week. But then, Paxton made an offer that appealed very much to Trump: Paxton would agree to drop out of the race if the Senate agreed to change its rules so that it could pass a package of election rules without any Democratic votes.
This was like waving a Big Mac in front of the president. Trump not only is obsessed with what he now calls the “Save America Act” — the Safeguard American Voter Eligibility Act — but he has long wanted to do away with the 60-vote threshold. If Republicans could ram through legislation on party-line votes, Trump’s power over his party in the Senate would be maximized. No more saying “Oh, gee. We wish we could, but we’ll never get seven Democrats.” The president could use his power with primary voters to punish any Republicans who resisted the bills he wanted. Under the Paxton proposal, Trump would get a more radically MAGA Senate without even having to drag a radically MAGA Senate candidate through the general election in Texas. He could have his burger and eat it too.
Presidents of both parties have long resented the legislative filibuster, particularly Democrats like Barack Obama who wanted to do big things but found a Senate that proved a better venue for small ball. Since the current rules went into place in 1975, though, Republicans have mostly defended it as a bulwark against executive overreach and the protection of the power of the minority party.
Since 1806, the Senate has allowed unlimited debate on any legislation, granting individual senators the privilege of holding the floor for as long as they wanted. Thirty years after that, with the Sectional Crisis and, eventually, the Civil War, looming, senators began to take advantage of that rule to blockade legislation by just holding the floor — what came to be known as filibustering. The Senate muddled through until progressives in the early 20th century demanded a change. First, the direct election of senators in 1913, and then, “cloture.” In 1917, President Woodrow Wilson grew frustrated with the Senate’s resistance to his efforts to get the United States into World War I and expand his powers and got Democrats to change the rules so that debate could be ended by a two-thirds majority.
Wilson’s fellow Southern Democrats would subsequently make effective use of that high threshold in the postwar years by sticking together and filibustering civil rights legislation. So, in the suite of rule reforms in the Watergate era, Senators made two significant changes. First, budget bills would be deemed exempt from the debate rules and could pass with a simple majority — a tool called “reconciliation” that subsequent presidents would use to push big, nonbudgetary initiatives through on party-line votes — and to lower the threshold to end debate on all legislation to only 60 votes.
That had been the norm for almost 40 years when Obama prevailed on Democrats to drop the threshold for his nominees being blockaded by Senate Republicans, except for the Supreme Court. When Republicans were back in power in 2017, they delivered a promised payback and added the high court to the list of exemptions, helping Trump to get three new justices confirmed in his first term. Executive prerogatives, yet again, pushed the filibuster downward.
Joe Biden had hoped to be the next beneficiary of the trend when he became president in 2021, telling Democrats to make an exception to the rules for a big package of election rules he said was a necessary response to Trump’s effort to swipe a second term on Jan. 6, but ended up looking like a Brennan Center wish list for progressive election priorities.
But everyone knew that if Democrats killed the filibuster for one bill, they would do it for others and that Republicans would respond in kind. A pair of Democratic senators killed the proposal by denying them the 51 votes they needed. Republicans highlighted the Biden effort to kill the filibuster and used it against former Vice President Kamala Harris when she unwisely offered her hypothetical support for such a move in the heat of the presidential campaign.
The only problem for Republicans is that Trump hates the filibuster maybe more than any Democratic president, which is why Paxton knew right where to place his shot to keep Trump from endorsing Cornyn and create a world of hurt for Senate Majority Leader John Thune (S.D.), who had been able to fend Trump off on not just the filibuster, but on Trump’s own version of Biden’s election law overhaul, the SAVE Act.
It put Cornyn in a bind, too. The MAGA premise is that unless the new election rules are passed, America is doomed, and that stopping Democrats from stealing elections is more important than the filibuster. It’s a mirror image of what Democrats tried before, except that for Republican primary voters the belief — or stated belief — in widespread voter fraud and the illegitimacy of the 2020 election has become the major litmus test for determining whether someone is really on the Trump train or just faking. This GOP mania has further excited Democrats, many of whom now believe that Republicans are going to try to steal the midterms with… the SAVE Act. It’s a self-licking ice cream cone of institutional destruction that brings us to the place where voters in both parties have historically low confidence in elections.
Cornyn’s solution to this predicament was to crawfish. He declared himself in favor of filibuster “reform,” maybe the “‘talking filibuster’ that removes the obstructionists’ free pass and makes them defend their indefensible views.” Of course Cornyn, one of the best tacticians in the Senate, knows that ending cloture votes and allowing the pre-1917 rules to go back into effect would shut the Senate down entirely. Democrats would love the chance to blockade all legislation by holding the floor indefinitely.
Cornyn also knows that there might not even be 51 votes for the SAVE Act, which now also includes two measures involving transgenderism. The original pitch for requiring all voters to show photo ID to vote in federal elections is a big political winner, but Republicans added new rules for registration and what amounts to a ban on mail-in balloting. Even before the transgender rules were tacked on, it was going to be a reach.
And as for having 51 votes to change the rules to really nuke the filibuster and move to a simple majority, there’s no chance.
Thune and Cornyn will try to tiptoe their way through that minefield next week by employing a different procedural maneuver, by which the Senate can take up the House-passed bill by a simple majority vote. But that means the bill is immediately subject to amendment and, ultimately, the 60-vote threshold on final passage.
Will that be enough to let Cornyn escape Paxton’s snare? Will Trump relent and let Republicans get busy saving their majority? Could the filibuster actually be killed? Tune in next week to find out in the next episode of America’s Crumbling Legislative Branch.
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