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Posted at 10:50 AM ET, 12/30/2010

The Senate's Opening Day

By Jonathan Bernstein

Brian Beutler over at TPM has some reporting on the emerging rules reform package that will be offered in the Senate by Tom Udall and Jeff Merkley on Jan. 5.

I find the substance underwhelming, and I'm not someone who wants to eliminate the filibuster....I don't think that the changes they are proposing, at least from what I've seen so far, will have much if any practical effect. But in this post, I want to focus on what perhaps is the biggest difficulty: They're pushing the Democrats into a position that will make future reform more, not less, difficult.

For those who are not experts in Senate rules reform procedure, let me explain, and I apologize if this gets a little technical. The House of Representatives adopts a full set of rules at the beginning of each Congress. The Senate, however, thinks of itself as a "continuing body," because for two-thirds (more or less) of the Senators, there's no real transition between being a member of the expiring 111th and the new 112th Congresses. In the House, every single member will take the oath of office on the first day; in the Senate, only senators beginning a term in January will be sworn in then.

This matters when it comes to rules because as a continuing body, the Senate has a continuing set of rules (including Rule 22, which governs extended debate and cloture). And one of those rules says that in effect it takes two thirds of all Senators to change the rules. In practical terms, in an era of party polarization, that means that any rules changes are impossible.

However, the notion that the Senate is a "continuing body" is just the Senate's own interpretation. There's another argument that each new Senate is a distinct and separate entity, and as such entitled to set its own rules -- and that in those conditions, with no prior controlling rule to the contrary, it only takes a simple majority to set (or change) Senate rules. Thus the notion that Jan. 5, 2011 is a unique day in the 112th Senate: the one day that the rules can be changed by majority rule.

Okay, with me so far? Basically, one Senate tradition says that it takes 67 votes to change the rules; another says that there's an exception, on the first day of a new Congress. That's the path that Tom Udall has been pushing.

But in fact, there's actually a third path available, and by taking the Opening Day option, Udall and the Democrats are, at least in my view, making it that much harder to use the third path. Most (indeed, as far as I know, all) Senate scholars believe that a majority of Senators can at any time use a variety of procedures to, in effect, change the rules by majority vote. That's what was called the "nuclear option" during the last decade; congressional scholars Steven Smith and Sarah Binder call it "reform by ruling." 

The problem with Udall's Opening Day procedure is that by arguing forcefully that the first day of the new Congress is an exception to regular order -- as Udall and some others have done -- they are, in effect, arguing that "reform by ruling" is illegitimate except once per Congress.  Now, that doesn't preclude Harry Reid from threatening to go nuclear if, for example, at least 41 Republicans decide in early 2012 to block every single nomination Barack Obama makes for the rest of that year.  Most Washingtonians understand that virtually all politicians are confirmed hypocrites when it comes to procedural battles like this, and that the parties swapped positions on approximately Election Day 2006.   But if the main deterrent to "reform by ruling" is the political fallout, then having the bulk of the Democratic caucus on record recently arguing that it can only be done legitimately once per Congress is certainly not going to help reformers win support of neutral opinion leaders.

That's especially true, in my view, because the Opening Day option is really just a subset of "reform by ruling."  The case for it, as far as I can tell, is perhaps slightly stronger, but not significantly stronger, than the case for any "nuclear" ruling.

In other words, by arguing that Opening Day is unique, Democrats are (rhetorically at least) handcuffing themselves in the future.  But at the same time, by using a ruling of the chair enforced by majority vote to change Senate rules, they are enhancing a precedent that Republicans will point to in the future should a majority Republican Senate choose to go nuclear. 

That might even be worth it if the proposed reforms were significant enough that they addressed the underlying problem.  As I've argued, however, that's not the case (on the "live filibuster" plan see here; for secret holds, see here).

Now, the one thing that Democrats could do to square that circle is to use their Opening Day gambit not just to make relatively minor rules changes right now, but to also permanently change the rules for changing the rules, ending the two-thirds requirement for cloture on bids to change Senate rules.  However, at least in the reports I've seen, that's not on the table at this point. 

Jonathan Bernstein writes about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Jonathan Bernstein  | December 30, 2010; 10:50 AM ET
Categories:  Senate Dems  
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Comments

Hey, I understood all that, great post Jon.

And still I am struck by how important was the decision to run Sharron Angle against Harry Reid. How DID that happen? I swear I could have beaten Harry Reid. Anyone with a clean personal background and some bone fides, some serious professional career/credentials could have (just look what Ron Johnson did to Feingold). But the Republicans chose Sharron Angle.

Posted by: shrink2 | December 30, 2010 12:02 PM | Report abuse

Meh.

I disagree that anyone's foreclosing on the third option. Reform proponents have a preference for the option that comes with something of an established tradition. That's neither surprising nor alarming to me. In a situation in which reformers expect to be hit with the old "Unprecedented!" attack, it shouldn't surprise or alarm anyone else, either, that they decided to go with... the option with precedent.

Nor does using the opening day gambit add any significant danger that Republicans will do the same in the future. This was already in their playbook, and available as one of the three options. The danger, such as it is, was already there. Indeed, the argument is that it always has been. That by itself does nothing to diminish the claims of a third option.

Posted by: djwaldman1 | December 30, 2010 12:03 PM | Report abuse

By relegating rules changes to only the first day of Congress, it also means that rules changes are only possible when the vice-president is the same party as the incoming majority. The most recent Senate could not have changed the rules because Dick Cheney was still its president.

I know people anticipate the Republicans changing the rules of the Senate if they win the White House and the Senate in 2012. But under this precedent, they won't be able to because Joe Biden will still be president of the Senate.

The fact that a lame-duck vice president could stifle or delay rule reform for two years means that we need a different system to determine the rules.

Posted by: wcampb17 | December 30, 2010 3:09 PM | Report abuse

Don't know if anyone is still reading this thread, but...

As far as I know, wcampb17 is wrong. It's a ruling of the chair, and unless the VP happens to be there then it's going to be a majority party Senator -- and the VP is hardly ever around. Granted, if the VP knew what was up and wanted to stop it, he or she could I suppose by always presiding, but that seems fairly unlikely to me.

As for what djwaldman1 says, that's a fair point, and there's really no way to prove anything one way or another. I understand your (and Udall's) point that it makes sense to do it when there's an intuitive case for fairness. But still, if it involves explicitly rejecting other options (as Udall and some other reformers have done by claiming that it's *only* possible on Opening Day), I do think it opens them to charges of hypocrisy.

As for the GOP, yes, most Dems right now believe that the GOP will simply end the filibuster the next time they have a unified gov't. Could be, but the fact is they didn't do it this last time, and there really are good reasons to expect them as individuals to support the filibuster. I'm not saying it will be decisive in either direction, but given that I think the proposed reforms (as reported) are small beans, I think it's up for grabs how good a strategy this is.

Posted by: Jonathan Bernstein | December 31, 2010 12:53 AM | Report abuse

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