How was the government shut down for 43 days?

Not why — forget about Affordable Care Act tax credits for a moment. How did a minority of senators gain the power to shut the government down?

At the risk of undermining my colleagues’ quest to canonize Sens. Jacky Rosen (D-NV) and Sen. Catherine Cortez Masto (D-NV) — Nevada’s moderate Democratic senators who cast two of the eight deciding votes to restore funding for federal workers and various federally funded benefits programs — it seems odd to ignore the procedural circumstances that made the votes of two members of the minority party necessary in the first place.

Republicans, after all, control the White House and, arguably, the Supreme Court. They also have controlling majorities of both houses of Congress, including the very Senate in which Rosen and Cortez Masto serve. Republicans, in other words, control all three branches of government.

So how did a minority of Democratic senators shut down the government in the first place?

The obvious answer is because their Republican colleagues let them.

The procedural mechanism Democratic senators took advantage of the legislative filibuster. Before 1972, senators had to perform filibusters the hard way — think Mr. Smith Goes to Washington, in which the protagonist talks for 25 hours before he collapses from exhaustion. This is what is now known as the talking filibuster.

After a series of filibusters opposing civil rights legislation during the 1960s, such as the one that preceded the Civil Rights Act of 1964, however, the Senate passed two reforms that were supposed to reduce the ability of a stubborn minority to obstruct the business of the majority.

First, the number of votes needed for cloture — to end debate and, consequently, any filibuster — was reduced from two-thirds (67) to three-fifths (60). Next — and this “reform” is key to the past few months and very likely another subsequent shutdown once the continuing resolution expires Jan. 30 — the Senate voted to amend its rules to allow measures being filibustered to be set aside so additional business can be conducted.

Following these reforms, instead of standing before the body and reading a series of favorite recipes, senators could just quietly place a hold on a contentious committee appointment or piece of legislation, secure in the knowledge that if there weren’t 60 votes present to end the potential “filibuster,” the measure would quietly die — and also secure in the knowledge that they wouldn’t annoy their colleagues by stalling the Senate with their grandstanding.

Thus the legislative filibuster, as opposed to the traditional talking filibuster, was born.

These well meaning reforms were designed to reduce the ease with which an obstreperous minority of senators could hold the Senate hostage. With the benefit of 53 years of hindsight, however, we can now see for ourselves that they’ve enabled partisan minorities to continually “frustrate” the will of the majority. 

I put “frustrate” in quotes because a simple majority of senators can choose to disempower the minority any time they want, as indeed Nevada’s very own former Sen. Harry Reid demonstrated when he used the so-called “nuclear option” in 2013 to overcome Republican intransigence against confirming presidential nominees.

President Joe Biden asked a majority-Democratic Senate to abolish the legislative filibuster in 2022. In response, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) cast the deciding votes against the rules change because they enjoyed having the leverage to quietly stall legislation they opposed without committing themselves to formally voting against it. 

During the recent government shutdown, President Donald Trump asked the Republican majority in the Senate to abolish the filibuster outright — a request he also made during his first term. Senate Majority Leader John Thune (R-SD) responded by saying “the votes aren’t there,” while other Republican leaders spoke out in defense of the filibuster.

In short, a bipartisan majority of senators would rather keep the power to frustrate objectionable legislation as an otherwise powerless minority than exercise the power to pass legislation as a simple majority.

That majoritarian unwillingness to wield constructive power has consequences. As Alexander Hamilton cannily predicted in Federalist No. 22, giving a minority the power to routinely override the will of the majority — as often happened under the Articles of Confederation that the Constitution he helped write replaced — leads to “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.” Additionally, “by the impracticability of obtaining the concurrence of the necessary number of votes, [the government is] kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”

Sound familiar?

Hamilton also wrote that, “The public business must, in some way or other, go forward.” The 214 executive orders Trump has issued this year are a byproduct of the public business going forward through the executive branch while senators refuse to allow the legislative branch to legislate. One of Trump’s major selling points in 2024 was that he was someone who would, to borrow a phrase from a governor he recently endorsed, “gets shit done” — if Congress won't, voters will continue to elect presidents who will, for good or ill.

I’m not naive. I have no doubt that Democratic senators, including Rosen and Cortez Masto, will refuse to abolish or otherwise curtail the quirks of senatorial procedure that maintain their relevance. I don’t begrudge Rosen for using what leverage she had to try to extract some concessions from her Republican colleagues, nor do I begrudge either of them their moment in the sun for demonstrating their moderation by voting for a measure that already enjoyed majority support in the Senate and which, by all rights, should have passed at least 43 days sooner.

I’m not asking either of them to take the moral high road — at least not today.

As long as the Republican majority in the Senate continues to empower the Democratic minority, I believe Senate Democrats should use that power for everything it’s worth. There’s a lot this government is doing that I disagree with, such as the unnecessary deployment of an aircraft carrier strike group against alleged drug boats in the Caribbean. Or the over-the-top behavior of immigration officials in American cities. Or the acquisition of direct ownership stakes in several American companies, including Lithium Americas, which is building the Thacker Pass mine in Northern Nevada.

I, for one, look forward to watching as Democratic senators use every procedural trick in the book to fight these actions.

The Republican majority of senators, however, need to decide if they’re going to become constitutional originalists and abolish the legislative filibuster — a postmodern invention with no root in the nation’s history or traditions — or if they’re going to wait fecklessly for Democrats to do so after a series of rolling government shutdowns compel voters to elect senators who promise to legislate, for good or ill, with a simple majority.

They have 10 weeks to make their choice.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a recurring opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected]. You can also message him on Signal at dcolborne.64.