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'The intent of both proposals is to make the Senate more like the Senate'

By Dylan Matthews

This morning, I went to the latest in a series of Senate Rules Committee hearings on filibusters and holds. This one focused on two reform proposals, offered by Sens. Michael Bennet and Frank Lautenberg.

Bennet's proposal is quite sweeping. It would eliminate anonymous holds, limit holds without bipartisan support to two days, and limit all holds to 30 days. It would require 41 senators to vote to uphold the filibuster, reversing the current requirement that 60 senators vote to stop it. That puts the onus of organizing support on those who are filibustering. It would also try to encourage bipartisanship by allowing 45 senators to kill a filibuster if the filibuster doesn't have at least three members of the other party signed onto it.

Lautenberg's proposal is more modest. Called the Mr. Smith Bill (Lautenberg brought a cardboard image of Jimmy Stewart from the film to the hearing), the bill would allow the Senate majority leader to call an immediate cloture vote as long as there is no discussion occurring on the Senate floor and the deadline for amendments has passed. This would force filibusters to actually be conducted on the floor -- hence the "Mr. Smith" moniker -- if the opposition wants to take advantage of the two-day "ripening period" before the Senate can vote to end a filibuster.

Neither Lautenberg nor Bennet wants to eliminate the filibuster entirely. "The Senate can and must defend the rights of individual or small groups of senators," Bennet insisted. But members of the committee thought even the men's more limited measure might go too far. Committee Chairman Chuck Schumer was enthusiastic about Lautenberg's plan, calling it "ingenious," but was more measured on Bennet's, saying only that it was "extremely interesting" and acknowledging that Bennet had "worked long and hard" on it. Robert Bennett, the committee's ranking Republican (and no relation to Michael Bennet), expressed concern that the proposals would turn the Senate into the House, and wreak havoc on the Senate calendar by effectively establishing a one-track legislative process. Currently, while cloture motions are ripening, the Senate can conduct other business. Bennett expressed concern that Lautenberg's plan would prevent this, and stop the Senate's business in its tracks.

The three experts the committee had called then stepped in to quell his concerns. Gregory Koger, a professor of political science at the University of Miami and author of a history of the filibuster, disputed the point about legislative tracking. The Senate would function as usual under the Lautenberg proposal, he insisted, unless the majority leader decided to force on-the-floor filibustering. A one-track process would be optional, a way for the majority to exert pressure during a filibuster battle.

Koger was strongly supportive of the Lautenberg proposal, saying it, combined with the Senate's "Pastore rule," which requires debate to be germane to the topic at hand, would force filibusterers to defend their actions and increase the price of obstruction, putting it closer to what it was before the filibuster became a common tactic in the 1960s. Far from turning the Senate into the House, Koger insisted, its intent, like the Bennet proposal, is to "make the Senate more like the Senate." Koger also disputed the insistence of both Schumer and Tom Udall that the "constitutional option" of changing Senate rules by majority vote is only possible at the start of a Congress. Koger insisted that the Senate can stop its rules at any point and change them by a simple majority, and that given political considerations, this might be the only way the filibuster can ever be reformed. That said, given that there are not enough votes in the current Congress to pass a cloture requirement change by simple majority, even Koger's method might not work.

Barbara Sinclair, a retired political scientist at UCLA, did not endorse either proposal, saying it was her job to present relevant data and senators' jobs to strike a balance between, in her words, "deliberation and decisiveness." She did note, however, that the current system allows neither, creating the worst of both worlds. Sinclair's data are striking as always. In her most vivid example of how the filibuster has slowed the legislative process to a halt, she compared the percentage of bills passed by one house of Congress but not the other before and since the 103rd Congress (1993-1995). Before, 6 percent of bills passed the House but not the Senate, and 5 percent passed the Senate and not the House. Since the 1990s, only 1 percent of bills have passed the Senate but not the House, and a whopping 20 percent have passed the House but not the Senate. The emergence of the Senate as the main legislative bottleneck, then, is a fairly recent phenomenon.

The most interesting witness, however, was Elizabeth Rybicki, an analyst at the Congressional Research Service. Rybicki's presence itself was unusual. CRS analysts do not usually testify before Congress, and Rybicki only appeared by special request of the Republicans on the committee. Even then, she could not say anything that even looked like an opinion. Stating her parameters, Rybicki recalled that when her mentor at CRS was asked what he thought about a piece of legislation, he replied, "I'm not allowed to think."

All the same, Rybicki had a point to make, and a persuasive one: the Lautenberg and Bennet proposals are too vague. For example, Lautenberg's proposal works by allowing the majority leader to "move the question" on cloture. Rybicki noted that there is no such motion in the Senate rules. It is clear enough what Lautenberg meant, but the bill as written would be hard to implement. Similarly, Bennet's bill seeks to regulate "holds," which are not a formal process in the Senate. They occur whenever a member tells the leadership he will object to a unanimous consent request regarding a bill or nomination. The senator typically will not even have to object on the floor; contact with the leadership is enough. To eliminate secret holds, then, one would have to require senators to disclose certain types of communication with the Senate leadership -- which types, exactly, Bennet's proposal does not specify. To require holds to be bipartisan, and to expire, would involve tinkering, removing the requirement of unanimous consent itself for certain actions.

The most interesting ambiguities Rybicki identified had to do with Bennet's proposals to increase the cloture-blocking requirement to 45 if support for breaking cloture is sufficiently bipartisan, or if opposition to it is not. Bennet's proposal says this would occur after three "attempts" to invoke cloture. Does this mean that the majority leader could file four cloture motions on the same day, wait two days, and then have them in a row, with the last requiring 45 votes to break? Or could the leader only file another motion after a vote has failed, in which case the earliest the requirement could rise would be nine days after the first filing?

What's more, the proposal determines whether a proposal is bipartisan by having the Majority Leader submit a list of members of his caucus to the Congressional Record, a list he can revise at any time. Let's say, then, that the current GOP, along with Ben Nelson, Mark Pryor and Mary Landrieu, decides to filibuster a bill. They would only have 44 votes, but they would have enough Democratic support to prevent the cloture-blocking requirement from rising to 45. Could Harry Reid submit a new caucus list to the Congressional Record, not including Nelson, Pryor, and Landrieu, see the requirement rise to 45, and break the filibuster? Under the current wording of the Bennet proposal, this seems to be possible. Far from encouraging bipartisanship, then, Bennet's proposal could in effect raise the cloture-breaking requirement to 45, with no additional wait, and no additional requirements.

By Dylan Matthews  |  July 28, 2010; 2:17 PM ET
Categories:  Senate  
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Neither Lautenberg nor Bennet wants to eliminate the filibuster entirely. "The Senate can and must defend the rights of individual or small groups of senators," Bennet insisted.

This is false. The Senate can and must defend the rights of AMERICAN CITIZENS. The rights of Senators only matter inasmuch as they are citizens themselves, of as representatives of those citizens. The idea that the Senate exists for the benefit of Senators, not the American people, is apparently bipartisan and pervasive among Senators.

Posted by: cinephile | July 28, 2010 2:31 PM | Report abuse

The real trick here is for the 26 most liberal members of the Senate, the ones who support filibuster reform, to give their caucus's leader the power over committee assignments and Chairs. That way, as in the House, repeated attempts to buck party, like on procedural votes or important party priorities, have serious consequences.
This is a big reason I've always regarded the current Republican focus on defeating Reid a bit of a mystery. Currently, his by-the-book attitude is a bigger help to Republicans than removing him in favor of someone less attached to current Senate "traditions".

Posted by: ctown_woody | July 28, 2010 2:32 PM | Report abuse

I'm glad Koger is arguing that the Senate can exercise its Constitutional power to make its rules by a simple majority of a quorum at any time. That said, its clear that even the pro-reform Democrats just have not thought things through at all thoroughly, leading to proposals that are vague and, in Lautenberg's case, would not really solve any problems. What the Senate needs to do is establish a new rule #1 which says that "Any action the Senate may take, it make take by the vote of a simple majority of a quorum, excepting only those actions for which the Constitution requires a vote of two-thirds." Now, if they want, they could add a further exception allowing the minority to delay, say, the vote on final adoption of a bill in the manner of the Harkin-Sheehan proposal. But the important point would be establishing that a simple majority of a quorum, and not unanimous consent, is the standard for conducting business, just like every other legislature in the country. Without establishing that explicitly, reform efforts will prove frustrating if not self-defeating.

And on the "But won't this turn us into the House" nonsense: there are worse things! You could remain the Senate!

Posted by: rwclayton7 | July 28, 2010 2:57 PM | Report abuse

I am very intrigued by a Lautenberg style reform. Everyone has seen and love Mr. Smith, I could see the 51 votes for this being whipped pretty easily. Plus we have established that Republicans generally fold very fast if they are forced to stand around the Senate Floor.

Posted by: flounder2 | July 28, 2010 3:06 PM | Report abuse

Wow. Democracy truly is the worst form of government except for all the others.

But, at least they're trying something. I wish them well. And bringing a Jimmy Stewart cut out up to the stage at least acknowledges the concept of good intentions.

Posted by: BHeffernan1 | July 28, 2010 4:20 PM | Report abuse

Fire Klein.

Posted by: screwjob18 | July 28, 2010 7:28 PM | Report abuse

About time! An effective minority veto has enabled a determined opposition to tie the country in knots while ducking responsibility for the consequences.

Posted by: jack824 | July 28, 2010 7:54 PM | Report abuse

A proposed rules change in senate requires a two thirds vote to force the matter to a vote.

Senate Rule XXII

Posted by: screwjob18 | July 28, 2010 8:21 PM | Report abuse

The only way to bring this nonsense to an end is for the citizenry to hold a Consitutional Convention, produce an amendment to the US Constitution to the effect that, except as specifically directed elsewhere in the Constitution, no legislation shall ever require more than a simple majority to pass.

The Republicans are NEVER going to vote to give up their chokehold on the legislative process, and the country can't go on like this. It is time for some drastic action.

Posted by: wireliner | July 28, 2010 11:35 PM | Report abuse

Just as Democrats have shown they like to change the rules depending on which party is in power at the time (i.e., Massachusetts keeps changing how Senators are replaced, depending on which party holds the governorship), I can only assume that these new proposals have clauses that allow their enforcement only when Democrats are in power.

If Republicans regain the majority in the Senate, then surely the Democrats will want the rules to revert to their current state so they can go back to abusing the filibuster and "hold" rules themselves, just as they did during the Bush years.

Hypocrisy fits Democrats like a well-tailored suit....

Posted by: dbw1 | July 29, 2010 9:50 AM | Report abuse

It was Republicans who coined the phrase "Nuclear Option" to end filibusters against their Bush Chosen ones.

"In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters.

With the nuclear option, Frist and his supporters would effectively change that rule so that filibusters on judicial nominees could be cut off by a simple majority vote."

Claiming Democrats always want to change the Rules in their favor is far from the truth.

The Republican Controlled House had a rule Pelosi and Democrats killed when they took control. That rule stated a Bill could not pass unless a Majority of the Majority Party, "Republicans", Agreed.

Posted by: ddoiron1 | July 29, 2010 10:47 AM | Report abuse

Typical Libturds...change the rules of the game to make it impossible for a minority to have a voice. No wonder the Libturd DemocRATS were against the Civil Rights Act.

Posted by: NO-bama | July 29, 2010 11:15 AM | Report abuse

Dear NO-bama: Typical Libturds...change the rules of the game to make it impossible for a minority to have a voice. No wonder the Libturd DemocRATS were against the Civil Rights Act.
My dear No. There is a distinct difference between allowing the minority a voice and granting the minority party absolute power to exert veto over the majority. When the current crop of Republican Senators decided that they would spend an entire Congress obstructing the majority will they poisoned the well once to many times. By the way I guess Libturd is your witty way of addressing liberals? I don't know of any Libturds who opposed the Civil Rights Acts. That my friend would be the Dixiecrats led by Strom Thurmond (you remember him, the white conservative Democrat who became a Republican) and the rest of the crowd that backed George Wallace in 1968 and then flat out became Republicans and voted for Nixon in 1972. Guess history isn't your strongpoint although clearly your gift with the English language is incredible.

Posted by: army164 | July 29, 2010 11:47 AM | Report abuse

Well this is a pretty decent proposal.....not that Dems are trying to change the rule so majority can steamroll the minority, but this actually cleans up the much abused filibuster. Proxy filibusters are a huge reason why the Repubs have been able to get away with creating gridlock. They're never really accountable for endless stalling; it's just raised the bar on passing any legislation to 60 votes.

If they feel strongly about an issue then they ought to have to get on the floor and debate about it until the rest of the body changes their mind or they realize the attempt is futile. CSPAN can record their stance on the issue and they can take the argument to the people when they're due for re-election.

Go on the record as to why you oppose a bill and act like the greatest legislative body in the world. Endless opposition should have consequences.

Posted by: theobserver4 | July 29, 2010 11:50 AM | Report abuse

Get rid of the secret holds. They really are fupping things duck, and as for the filibusters, I'd like to see this Senate enact reconcilliation more than they have.

Posted by: glenglish | July 29, 2010 11:53 AM | Report abuse

Thank you army164 for giving No-bama an accurate history lesson.

Posted by: theobserver4 | July 29, 2010 11:54 AM | Report abuse

While I don't have any particular opinion on the topic, I would note that Ezra's research here is quite good. He lays out the sources, issues and details much better than what is normally done in WaPo articles.

Too bad we don't get this level of explanation around the ACTUAL issues themselves!

Posted by: BattleOffSamar | July 29, 2010 1:45 PM | Report abuse

If they change the rules, watch it bite them in the behind when the Republicans get back in charge.

Posted by: johnsonmarc62 | July 29, 2010 1:49 PM | Report abuse

"If they change the rules, watch it bite them in the behind when the Republicans get back in charge."

I think that a large percentage of people support procedural reform in the Senate because they see the current state of legislative paralysis as unworkable. Gridlock makes America weaker; especially in the more competitive world we live in. Brazil, China etc don't have the filibuster!!

That is not to say that it will not be horrible for Democrats when they see Republican majorities banning gay marriage and abortions, privatizing social security and whatever other craziness they may get up to!!

The fact remains however that legislative gridlock is bad for the country and bad for democracy - whoever wins the election should have a fair chance to govern, even if you personally find their ideas distasteful.

Posted by: lazza11 | July 29, 2010 4:10 PM | Report abuse

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