If Senate rule XXII were a Star Wars movie, it would be The Last Jedi because so many have been fooled into thinking it’s great while it’s actually an abomination. Rule XXII — cloture, the procedural filibuster, or the stealth filibuster used by Chuck Schumer and Senate Democrats to shut down the government for three days — is an unconstitutional Senate rule which requires a 3/5 supermajority of Senators to end debate on a bill. Only after debate has ended can the bill actually be voted on, at which point it can be passed by an in-line-with-the-Constitution simple majority.
It’s called a “stealth” filibuster because it doesn’t require a Jimmy Stewart-style talk-a-thon where one brave Senator holds the floor and speaks until he becomes delirious and collapses from fatigue. Instead, it requires (insert drum roll here)… nothing! In a stealth filibuster, Rule XXII does all of the heavy lifting for the Senators, and instead of “Mr. Smith Goes to Washington,” you end up with a real-life movie called “Mr. Smith secures a large enough minority of Senators to vote to use procedure to block legislative action which would otherwise curry the favor of a simple majority.” Nobody’s forking over ten bucks to see that one any time soon.
If rule XXII were a person, it would be Bruce Willis in the last scene of Die Hard. Bloodied, beaten, bullet hole through the shoulder, limping from the pain and abuse to which he’s been subjected.
Why? Because both parties are fond of grenade-ing the rule when it serves their political agenda. Harry Reid wanted to confirm Obama’s lower court nominees, but Republicans were using the stealth filibuster to stop him, so Reid pulled the pin out of Rule XXII and exploded it. Democrats tried to use the stealth filibuster to block Justice Gorsuch’s confirmation, so Republicans hit the deck and blew it up. Ridiculously, the rule requiring a supermajority can be undone or changed at any time by a simple majority. Every time a majority party leaves the rule in place, they’re basically digging deep in their pockets to pay a bouncer 10 percent more than the actual cover charge while the bouncer’s inner-monologue mocks them for being suckers.
Minority party abuse of the stealth filibuster is nothing new, nor is it unique to the Democrats. What is new this time around is the Democrats’ tactic of propping up Rule XXII to filibuster for them while simultaneously invoking a Bravo Sierra talking point, which claims the stealth filibuster doesn’t exist. The talking point was recited ad nauseam by Democrats during the shutdown: “Republicans control everything but still can’t keep the government open” or “Republicans control both houses of Congress and the White House but can’t pass a funding bill.” The DNC sent out an email reading, “Republicans control the entire Federal government. Right now the government is shut down because the GOP is too incompetent to keep it open.” That talking point is a lie — a cover-up which assumes that voters are way too stupid to know that there’s a filibuster going on.
That’s why it’s called a “stealth filibuster.” It doesn’t show up on the radars of those who are only casually interested. Of course, this level of snake oil salesmanship can always be expected from Democrats. Obamacare architect Jonathan Gruber let the lion out of the bag on Democratic policy-making strategies years ago when he explained how they relied on “the stupidity of the American voter” to create support for bad policy. A couple years later, Ben Rhodes made sure nobody forgot about the lion when he explained how Democrats create “an echo chamber” by lying to “27-year-old reporters” who are covering policy-making way out of their depth.
Fact: The Republican spending bill received a majority vote in the House.
Fact: It received a majority vote in the Senate.
Fact: It was even a bipartisan majority!
Over 10 percent of Senate Democrats are on-board to vote for it. The three day shutdown we experienced was not a Republican failure by the measure of any Earth logic; it was the tyranny of the minority party allowed and enabled by Senate Rule XXII.
In the end, Schumer’s filibuster-while-pretending-not-to-filibuster tactic was about as well-conceived as a Joe Scarborough song (yes, that’s a real thing — check it out). When he agreed to lift the filibuster and reopen the government, it exposed the fact that they’d had the power all along and simply lied about it. Voters were not fooled as the Democrats hoped they’d be.
If the shutdown had dragged on for weeks, and the Trump administration had sued the Senate, there’s an excellent chance the Supreme Court would declare Senate Rule XXII unconstitutional. Article 1 section three gives instructions for what happens when the Senate is “equally divided.” By creating an artificial supermajority barrier, the Senate is, in essence, requiring an unconstitutional supermajority for the passage of the bill. 50 out of 99 Senators were prepared to vote “yea,” but the 3/5 requirement of Rule XXII prevented that from happening. Here’s a link to an excellent explanation of the unconstitutionality of the cloture rule by UGA (go Dawgs) law professor
UGA (go Dawgs) law professor Dan T. Coenen published an excellent explanation of the unconstitutionality of the cloture rule in the Boston College Law Review.
The next shutdown can be avoided now by finishing off Rule XXII and ending the minority party’s unconstitutional stealth filibuster power for good.
Eddie Zipperer is a political science professor at Georgia Military College.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.