How dual-tracking destroyed the Senate
Barry Friedman and Andrew Martin took to the New York Times yesterday to explain the key procedural change that turned the filibuster from a high-cost, final-stand maneuver to an everyday occurrence that was harder on the majority than the minority:
During the 1960s, the Senate was frozen by lengthy filibusters over civil rights legislation. When, in the mid-’70s, that tactic once again threatened to bring the Senate to a standstill, Robert Byrd, the West Virginia Democrat who was the majority whip, invented a dual-track system. This change in practice allowed the majority leader — with the unanimous consent of the Senate or the approval of the minority leader — to set aside whatever was being debated on the Senate floor and move immediately to another item on the agenda.
The result of tracking? No more marathon debate sessions that shut down the Senate. While one bill is being “filibustered,” business can continue on others.
Today a “filibuster” consists of merely telling the leadership that 41 senators won’t vote for a bill. Worse, any single senator can put a “hold” on anything, indefinitely, for any reason. Not only has it become easier to “filibuster,” but tracking means there are far fewer consequences when the minority party or even one willful member of Congress does so, because the Senate can carry on with other things.
Tracking allowed Republican Senator Richard Shelby of Alabama to stop 70 administration nominees while pursuing earmarks for his home state. It permitted the Senate to conduct other business, like confirming a circuit-court judge, during the recent hold by Jim Bunning, Republican of Kentucky, on the unemployment benefit extension. During the “filibuster” of the Senate health care bill, it cleared the way for months of other votes.
Because dual-tracking is a Senate practice, not a formal rule, the majority leader, Harry Reid, could end tracking at any time. By doing so, the Democrats would transform the filibuster and recover their opportunity to govern effectively.
On the other hand, this does presume that minorities in general and Republicans in particular will not shut down the Senate over every little thing. That may or may not be a safe bet, but it's hard for the majority, which labors under the responsibility of getting things done and keeping unemployment insurance running and confirming nominees and passing a budget and all the rest of it, to feel confident taking it.
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