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.
Republicans Counter
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.”
Majority leaders of both parties use the parliamentary tactic of adding insignificant amendments, such as altering the bill’s enactment date, so that opposing senators can’t offer their amendments during debate. This tactic enables the majority leader to speed up the process and block consideration of amendments that may threaten the leader’s preferred legislative outcome, wrote Brian Darling, director of Government Relations for the Heritage Foundation.
Filibuster—a Senate Tradition
“The filibuster actually realizes the founder’s intent that the Senate slow the legislative process ‘to ensure due deliberation and inquiry’ before passing a bill,” wrote Darling.
The Senate was envisioned by the founders, such as Thomas Jefferson and James Madison, as a brake on the House. Members of Congress had shorter two-year terms and more directly reflected the will and “passions” of the people. The Senate has “a tradition of extended debate and a process of legislating that lends itself to numerous amendments,” said Darling.
Alexander and Darling fear that if the Senate was to completely abolish the filibuster, the Senate would become a smaller version of the House, and its constitutional role would not be fulfilled.
“The Senate operates largely by unanimous consent,” said Alexander at the Heritage Foundation. He said the minority should have a platform to speak their views and offer amendments.
“What the filibuster does, is give you a chance to debate, and amend, and talk till you get consensus,” said Alexander on the PBS “New Hour,” Jan. 3. He said the Senate does not need a change in the rules but a change in behavior.
Alexander played a video of Democratic Senate leaders when they were the minority in 2005. They filibustered 10 of President Bush’s judicial nominations. Sens. Byrd, Dodd, Reid, Schumer, Clinton, and Obama warned that ending the filibuster would be a historical mistake that members of the Senate would deeply regret.
The Standoff
Udall countered the Republican arguments on Jan. 5 in the Senate. His resolution does not eliminate the filibuster and its protection of minority right, “but addresses its abuse.” He said, “The Founders made [the Senate] distinct from the House in many ways, but the filibuster is not one of them.”
Udall agreed with Alexander that the Senate body should protect minority rights and should not restrict the right to amend.
“The important thing is to make sure we get the final vote though. … We’re running away from up-and-down votes,” Udall said on the “News Hour.” Udall wants to make the motion to proceed nondebatable, or at least limit debate, so that bills can reach the Senate floor for discussion and a vote. Currently, 41 senators can block the motion to proceed.
Alexander said it was difficult for him to support Udall’s proposal, “because if you are the minority, the motion to proceed is your weapon to require the majority to give you amendments.”
Alexander said proposed bills could reach the floor lacking consensus, such as the health care reform act, which he said resulted in the country wanting to repeal and replace it.
“Recognize that there has to be bipartisan cooperation and consensus on important issues,” he said.
Alexander said, “We don’t need to change the rules.” He said the majority can confront a filibuster. Today, however, the mere threat of filibuster is sufficient to stop the process. The Senate work week has been reduced to three days. Alexander said that the Senate did not vote on Fridays in the past year. The majority can’t confront a filibuster “if every senator knows there will never be a vote on Friday.”
But Udall doubts Alexander’s hope for bipartisanship and a return to the good old days when Robert Byrd (D-W.Va.) and Howard Baker (R-Tenn.) took turns being Majority Leader (1977-85) will happen without intervention. He said the obstructionism and gridlock won’t stop without reforms that preserve its “uniquely deliberative nature, while also allowing it to function more efficiently.”
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