The Senate's Opening Day
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.
| December 30, 2010; 10:50 AM ET
Categories: Senate Dems
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