MSNBC’s Hayes Brown offers the provocative argument that “Vice President Kamala Harris could kill the filibuster herself.” There’s a lot of setup, mostly drawn from the eighteenth century and therefore before modern precedents. But his overall point, that the actual text of the Constitution is incredibly murky on the powers of the VP as “president of the Senate,” is certainly correct.
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.”
And, indeed, all indications thus far have been that, not only does Harris envision herself as very much a partner in a Biden-Harris administration but President Biden is at least willing to publicly go along with that idea.
Still, she’s likely to have little choice but be in the Senate chambers far more routinely than she’d prefer given a 50-50 partisan split and Republican Leader Mitch McConnell’s history of gumming up the works when in the minority.
So, given that there are surely 50 Republican votes against abandoning the filibuster with a Democratic President, Democratic House, and effective Democratic control of the Senate—and strong indications from at least two Democratic Senators that they won’t go along with the nuclear option—how does Harris do what the title suggests? Doesn’t she just exist as a tie-breaker?
Maybe not. As Brown details, there have been multiple instances over the years—although only none, in the last half-century—where major rules changes were implemented based solely on the ruling of the VP in his capacity as Senate President. The most recent case, while ultimately nullified, illustrates a path:
[Nelson] 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.
So, while the Rockefeller precedent isn’t exactly a precedent, it could have been. And, thus, Brown concludes,
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 “could issue an opinion from the chair that the filibuster is unconstitutional.”
That would certainly be one way to cut that Gordian knot.
Beyond that, Harris has other options for wielding more power in the Senate. With a united Democratic caucus on her side, any attempts to appeal and overturn Harris’ decisions would fail under Senate rules. Among the levers she should consider pressing is the ability to strip McConnell of many of the special privileges he has as minority leader, a precedent put into place by John Nance Garner, Franklin D. Roosevelt’s first vice president.
Or she could take up some of the reforms Theodore Roosevelt suggested in an 1896 article. “It might be well if in addition to his vote in the Senate in the event of a tie he should be given a vote, on ordinary occasions, and perchance on occasions a voice in the debates,” wrote Roosevelt, who would himself soon become a vice president who ascended to the presidency after the president’s death.
Ultimately, this strikes me as a frustrated pundit’s fantasy.
Surely, Harris wouldn’t do any of these things without Biden’s approval. And, while he has softened his stance on the matter since being elected, he’s an old Senator at heart and jealous of its institutions. Further, such a move would put the handful of remaining red state Democrats in the Senate in a perilous position. Indeed, I wouldn’t be shocked if Joe Manchin didn’t switch parties in protest.
Ultimately, while I think whatever utility it may have had is gone, I don’t see the filibuster going away absent a much more substantial majority. I do wonder, though, if it isn’t time for a 1975-style modification. Even changing the cloture requirement to 55 votes would be theoretically be helpful systemically without turning the Senate into a differently-elected version of the House.
