REID PREPARES TO NUKE THE FILIBUSTER
By Wendy McElroy
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A filibuster is the procedure within a legislative body through which one member can extend debate and, so, delay or obstruct the vote on a proposal. In theory, its purpose is to protect the rights of a minority party and to promote free discussion. In practice, it is often used merely as a way to obstruct bills and measures such as the appointment of judges.
The issue of filibustering is now splashing across the media. A November 21 headline in the Minneapolis Post announced, ”Big test of the filibuster rule may be coming in January.” A November 14 headline in the Washington Post declared, “Filibuster reform: Avoid the ‘nuclear option’.” Politico (Nov. 25) pronounced, “GOP warns of shutdown over filibuster.”
The procedure has become a hot news item because the Democrats in the Senate are determined to push through rule reform. Filibustering does not occur in the Republican-dominated House of Representatives but it is a common tactic in the Democrat-dominated Senate. There Republican Senators have made extensive use of filibustering.
Democrats seem determined that the obstruction will not continue into 2013. Senate Majority Leader Harry Reid (D-Nev.) has pledged, “We will not do away with the filibuster, but we will make the senate a more meaningful place. We are going to make it so we can get things done.” In short, he wants to amend the Senate rules so that Democrats can push through the bills they favor. And he is not reluctant to use a maneuver that is called “the nuclear option.”
The looming conflict can only be understood with a basic grasp of what a filibuster is, which reforms are being sought, and why.
THE CURRENT REALITY OF FILIBUSTERS
Most Americans are familiar with the filibuster through the classic movie “Mr. Smith Goes to Washington” in which Jimmy Stewart played a Senator who spoke for 24 hours in order to block passage of a corrupt appropriations bill. Since the Senate rules back then demanded merely that a Senator keep speaking and did not restrict his content, Stewart read many texts into the record that were unrelated the bill; real-life Senators have read everything from the Bible to the phone book. Stewart’s filibuster ended only when he physically collapsed.
Filibusters have changed considerably since the movie’s release in 1939. For example, there is no longer a need for an objecting Senator to speak continuously. He can simply invoke or threaten a filibuster. At that point, Senators from the majority party must invoke “cloture” if the measure is to proceed; cloture derives from the French word clôture or conclusion.
Rule XXII of the Standing Rules of the Senate defines how cloture must occur. Simplistically stated, if a quorum is present, the Presiding Officer asks for a “yes” or “no” vote on whether to close debate and proceed with the pending matter. If “three-fifths of the Senators duly chosen and sworn” (60 out of 100, or a supermajority) vote “yes,” then the pending matter occupies the Senate “to the exclusion of all other business until disposed of.” (Note: some measures are exceptions to this procedure. For example, budgets cannot be filibustered.)
In recent years, Democrats have rarely managed to muster the required 60 votes and, so, contested bills have usually been tabled. Then, the Senate moves on to other business. When the Senate convenes on January 3rd, there will be only 55 Democrats; the structure of 2013 looked a great deal like that of 2012. The Los Angeles Times (Nov. 25) noted[/link], “The current 112th U.S. Congress has enacted just 196 public laws, the lowest number of any Congress since World War II and lower than during previous periods of divided party control. In the Senate, just 2.8% of bills introduced have been passed, another record low in modern times.”
Even when the cloture process is successful and measures move forward, the filibuster remains an effective obstruction because it can be raised at different steps in passing a bill. The motion to proceed on the measure can be filibustered, then the measure itself as well as any amendments to it. Each step requires another cloture process.
In the Huffington Post (Nov. 15), Senator Elizabeth Warren (D-Mass.) gave a sense of the Democrats’ frustration. Warren claimed Senate Republicans had filibustered “380 times since the Democrats took over the majority in 2006.” One reason for the flood of filibusters is the ease with which they are invoked. Warren wrote, “any senator can make a phone call, say they object to a bill, then head out for the night. In the meantime, business comes to a screeching halt.”
The Democrats seem clear about the rule changes they want. The first is to limit the number of times a single bill can be filibustered. For example, Reid wants that option removed from the “motions to proceed” through which bills are introduced.
The second change is a return to the “Mr. Smith” style of filibustering – that is, speaking continuously. As long as no other business is presented to on the floor, the filibustering Senator would need to continue. Then, after he drops from exhaustion, the bill could be addressed. The most famous example of this manner of “breaking” a filibuster occurred when Senator Strom Thurmond launched a one-man campaign against the Civil Rights Act of 1957. The then-Senate Majority Leader Lyndon B. Johnson presented no other business and Thurman was forced to go on. He did so for 24 hours and 18 minutes, setting a still-unbroken Senate record and giving a recipe for his grandmother’s biscuits in the process. After that, the Act was forced to a vote and passed.
Another reform under discussion but less likely to occur is requiring the minority party to produce 40 votes in order to maintain a filibuster instead of requiring the majority party to produce 60 votes to overcome one.
But the most controversial aspect of the coming filibuster war is the process of reform Reid is considering.
THE REAL CONTROVERSY?
It generally takes 67 votes, as opposed to 60, to end a debate or filibuster on an amendment to the Senate rules. The requirement virtually dooms the prospect of reform for Democrats…unless, of course, the requirement can be side-stepped. This could happen in one of two ways.
After every election – that is, every two years — a convening Senate must declare itself to be a “continuing body.” This means the rules and procedures of past sessions apply. If Reid breaks from tradition and declares the new Senate to be a different body, then the old rules do not apply. The reforms could be passed by a simple majority vote of 51.
In the Huffington Post article, Senator Warren wrote, “On the first day of the new session in January, the senators will have a unique opportunity to change the filibuster rule with a majority vote, rather than the normal two-thirds vote.” [Emphasis added.]
The second and more likely manner in which Reid could side-step the need for 67 votes is called the “nuclear option.” It is a tactic he has used in the past.
On October 6, 2011, the Hill announced, “Reid triggers ‘nuclear option’ to change Senate rules, end repeat filibusters.” The article explained, “In a shocking development Thursday evening, Senate Majority Leader Harry Reid (D-Nev.) triggered a rarely used procedural option informally called the ‘nuclear option’ to change the Senate rules. Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of a bill.”
The much disputed nuclear option allows Senate rules to be overridden by a simple majority. The tactic is also called “the constitutional option” because it draws legitimacy from vagueness within the U.S. Constitution.
In the Harvard Journal of Law & Public Policy (Fall 2004) Martin B. Gold and Dimple Gupta rooted the modern use of the term “constitutional option” in a suggestion floated by Senator Robert C. Byrd (D-WV) in 1979. Byrd stated,
“The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.
. . . .
The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”
Since 1979, the “constitutional option” has been endorsed in full or in part by three “Vice Presidents and three times, by the Senate itself.”
If Reid manages to pass Senate rule reform with a simple majority, then the bipartisanship of past years will pale in comparison to that of 2013.
When Reid “went nuclear” in 2011, the Republicans were outraged. The Republican protest was hypocrisy, of course, but their rage was real. They accused Democrats of changing the nature and role of the traditional Senate. Then-Senate Minority Leader Mitch McConnell declared that Democrats were “fundamentally turning the Senate into the House” which runs on a simple majority.
Current Republican Senators are already drawing lines in the sand. Sen. Tom Coburn (R-Okla.) declared, “If you take away minority rights, you’ll destroy the place [the Senate]. And if you destroy the place, we’ll do what we have to do to fight back.”
The incoming Republican whip Sen John Cronyn (R-TX) vowed, “It will shut down the Senate.”
When the 113th session of the Senate convenes on January 3, 2013, an epic confrontation will probably erupt. If it does, then the two parties will be even less inclined to co-operate on anything at all during the next four years.