WASHINGTON—On the first day the new Senate met, Jan. 5, a group of Democratic senators proposed changing long-standing rules. They want to curtail the use of the filibuster and end the secret “holds” that senators can use to block bills and nominations. They threatened to use what they called the “constitutional option,” and force a change. They could do this by a simple majority vote of 51 or more.
No vote on the rules occurred on the opening day, but the matter will be taken up again on Jan. 25.
Republican leaders are working with the Democrats, who have a 53 to 47 advantage in the new Senate, to make changes. They say existing rules are preventing them from offering amendments and speaking. Republicans say that changing Senate rules, including the filibuster, could endanger the body’s tradition of extended debate and deliberation, and turn the Senate into a smaller version of the House.
Sen. Tom Udall, a Democrat from New Mexico, has been in the Senate for only two years and doesn’t like what he has seen. He said he has seen bills blocked and delayed, including the Small Business Jobs Act and the National Defense Authorization Act. The former was designed to create jobs and the latter to provide for service members and other “critical national defense initiatives.”
“Up-or-down votes on important issues have been unreasonably delayed or blocked entirely at the whim of a single senator. Last year, for example, one committee had almost every piece of legislation held up by holds from one senator,” said Udall on the Senate floor.
He continued his critique:
“The Senate is broken. In the Congress that just ended—because of rampant and growing obstruction—not a single appropriations bill was passed. There wasn’t a budget bill. Only one authorization bill was approved—and that was only at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.”
Democratic Sens. Jeff Merkley (Ore.) and Tom Harkin (Iowa) are leading the effort to change the rules, with Udall.
They are not advocating a total end to the filibuster, but to end what they called abuse of the filibuster.
According to Citizens for Responsibility and Ethics in Washington (CREW), filibusters averaged one a year before 1970. Between 2005 and 2006, there were an average of 34 cloture motions filed to end filibusters, and between 2007 and 2008, there were 139 cloture motions filed, about 70 a year. In the most recent session of 2009-2010, 123 cloture motions were filed.
Under the rules of the United States Senate, a senator is permitted to speak for as long as he or she wishes, on any topic, unless three-fifths of the senators, 60, vote to invoke cloture.
The Senate adopted Rule 22, the cloture rule, in 1917. Two-thirds of those present to vote could invoke cloture. Starting in 1949, two-thirds of the entire Senate was required—normally 67—a number very hard to achieve. That many senators had to vote together to overcome the filibusters in the 1950s and 1960s by Democratic senators from Southern states, who used the filibuster to block civil rights legislation.
In 1975, the threshold needed to invoke cloture was lowered to 60 senators. Udall proposes to change that to a vote of three-fifths of the senators who are present, which at any one time could be less than 60 votes.
Republican leader Sen. Lamar Alexander (Tenn.) said the real obstructionists have been the Democratic majority. They “used their majority advantage to limit debate, not to allow amendments, and to bypass the normal committee consideration of legislation.”
Speaking at the Heritage Foundation, Jan. 4, Alexander said that Majority Leader Harry Reid used his power to cut off all amendments and debate 44 times—more than the last six majority leaders combined. He based this number on data from the nonpartisan Congressional Research Service.
Alexander said that the number of recorded filibusters is misleading. He said that when Republicans offer an amendment, Majority Leader Reid denies them the right to speak and amend. “He actually is counting as filibusters the number of times he filed cloture, [that is] moved to cut off debate.”