PLANK JANUARY 22, 2013
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To most of us, today is Jan. 22, but in the Senate it's Jan. 3. That's because Senate Majority Leader Harry Reid has extended indefinitely the first legislative day of the 113th U.S. Congress, which began on Jan. 3. It's a little bit like that Nicholson Baker novel The Fermata, except that instead of stopping time to jerk off, Reid is stopping time to consider potential changes to the filibuster. Which may, sadly, amount to the same thing.
Senators Jeff Merkley and Tom Udall lead a group of Democrats who want to require that all filibusters be the "talking" kind. This would be meaningful reform. "It would work like this," Merkley said in a memo to Senate colleagues:
If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of "extended debate." In short, once the Senate has voted for additional debate, senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments.
If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.
This was how the filibuster worked before rule changes enacted in the 1970s allowed senators to filibuster legislation without actually talking themselves hoarse on the Senate floor. Restoring the talking filibuster is a less desirable option than eliminating the filibuster altogether (as the House of Representatives did in the 19th century), but it's still worth doing, because it would make it significantly more difficult to block legislation by filibuster.
Reid, alas, is cool to Merkley and Udall's proposal. He has talked up an alternative proposal that would eliminate filibusters on certain procedural votes but leave in place the current passive filibuster option for final passage of any bill. He's also considering a proposal that would require the filibustering minority to demonstrate on the Senate floor that it has the necessary 41 votes to filibuster. It's hard to see how either of these changes would pare back obstruction by the minority party in any meaningful way.
Changing the filibuster rule would require a Senate vote, and there's a general sense (though not an absolute consensus) that any vote to alter Senate rules must occur on the first day of a new Congress. That's why it's still "Jan. 3." Merkley and Udall favor changing the filibuster rule by simple majority if necessary. This is what they call the "constitutional option" and what opponents call the "nuclear option." It's controversial because it departs from current Senate rules, which require a two-thirds majority to change any rule. The theory behind the majority rule-change vote is that "current" Senate rules can't carry over from one Congress to another; they must be reaffirmed by the new Congress, and when that happens the Senate may alter them.
Reid isn't at all sure he wants to impose even his own milquetoast filibuster changes by nuclear option. I kind of see his point. If you're going to provoke the Republican minority by upending existing procedures, you hate to create all that ill will if the new procedures are of little practical consequence. On the other hand, establishing the precedent of changing Senate rules by simple majority vote could prove handy down the road when a bolder rule change is voted on—say, re-establishment of the talking filibuster, or eliminating the filibuster altogether. Obviously Democrats would hope that next rule change would be proposed while Democrats were in the majority, though in the long run the Democrats would be bound to end up in the minority someday, and when they did they'd have to accept diminished power to obstruct the (Republican) majority. (I think reform is worth it.)
Further complicating matters—and potentially rendering the whole exercise onanistic—Reid isn't sure he wants to support his own weak reform at all. He'd rather work out some sort of deal with Senate Minority Leader Mitch McConnell, who doesn't sound like he wants any rule change. ("The Senate isn't functioning as it should. And it has nothing to do with a process that has served us well for a very long time.") Reid will keep trying to reach a compromise for at least the next several days, possibly forestalling the advent of February (including, ironically, Groundhog Day).
The trouble with trying to work out a deal with McConnell is that Reid did that last time and came to regret it. As I've noted previously, the ratio of cloture votes (a rough proxy for filibusters) to bills passed nearly doubled during the 112th Congress. So why would Reid go down that road again? Well, it's always been unclear just how badly Reid really wants to change rules governing the filibuster. After then-Senate Majority Leader Bill Frist threatened to change filibuster rules using the nuclear option in 2005, Reid went, well, nuclear. Here's what he wrote about the attempt in his 2008 book, The Good Fight:
They were threatening to change the Senate so fundamentally that it would never be the same again. In a fit of partisan fury, they were trying to blow up the Senate. Senate rules can only be changed by a two-thirds vote of the Senate, or sixty-seven senators. The Republicans were going to do it illegally and with a simple majority, or fifty-one. Vice President Cheney was prepared to overrule the Senate parliamentarian. Future generations be damned.
The man who wrote those words will likely hold his nose and accept pretty much any cosmetic "compromise" that McConnell offers him.
Update, Jan. 23: I may have been too dismissive of the 41-vote option. Ezra Klein makes this scheme (which Slate's Dave Weigel attributes to Sen. Al Franken, D.-Minn.) sound like it might have some teeth after all: "If the minority only had 38 votes present in the room, the filibuster would end. It also means the minority could be forced to muster all their people to vote at times of the majority leader’s choosing: say, 3 a.m. on a Saturday." A talking filibuster would still be better, but the 41-vote option isn't nothing.
16 comments
To be clear, Frist threatened the nuclear option (i.e., to change the Senate rules) in the middle not the beginning of a Congress. While the distinction may seem formalistic, that's the point of rules. As for Reid, pretending that the first day of the new Congress never ends is the kind of ridiculous high jinks that Americans can't tolerate. I dunno about Reid. Is Nevada even a state?
- rayward
January 22, 2013 at 4:37pm
The last two sentences of the first paragraph are, I think, a first for a Tim Noah article. Comparing Harry Reid's parliamentary trick to serial masturbation with such adroit elegance made me read the passage twice to make sure that he actually did that.
- ironyroad
January 22, 2013 at 4:48pm
Thanks, Ironyroad, but actually I'm not comparing Reid's parliamentary trick to masturbation. I'm comparing what I fear will turn out to be Reid's trivial compromise on the filibuster to masturbation. If there's a substantive rule change it won't be masturbation and the time-freezing trick will have been worth it.
- Timothy Noah
January 22, 2013 at 5:20pm
Tim, you can compare what Reid is doing to anything you like; it still won't do justice to how horrible a game Reid is playing. I suspect that Reid and some senior dem senators are more concerned about their individual perks and privileges than about what happens when they're in the minority. But regardless, this is disgusting. Does any other modern legislature across the globe let a minority freeze its operations the way the U.S. Senate does?
- Thunderroad
January 22, 2013 at 5:25pm
Aha! Still Tim, I like it.
- ironyroad
January 22, 2013 at 5:40pm
You put that photo adjacent to a masterbation reference and no one comments? I'm disappointed.
- jpell64
January 22, 2013 at 6:12pm
Is it worth it considering that Republicans hold the house? With the exception of confirming appointees holding the Senate while the opposition holds the House means no law can be passed without Republican support. Now if they could get a compromise on filibuster for the confirmation process of executive but not judicial appointees I would have no problem with that. I know it would have meant a loathesome little creep like Bolton would have been confirmed but he would have only filled out the Bush 2nd term.
- blackton
January 22, 2013 at 7:49pm
@jpell64, you filled the void admirably. :7)
- rhoneyman
January 23, 2013 at 11:26am
Senate leaders are invariably non-reformers when it comes to leadership changes. They have to be tested. Assuming that Reid is as weak as he is reported to be by Timothy Noah--and I'm with Noah-- Senators Merkley and Udall need to establish a test by amending whatever Reid offers to their stronger proposal which should include the 41 vote test. I write this as a 50 year veteran of filibuster fights before Congress enacted effective civil rights legislation.. If Merkley and Udall clearly announce that they will offer such an amendment, and a majority of Senate Democrats support them, that would create an incentive for Reid to reconsider as he would not want a vote of no confidence from Democratic Senators on an institutional issue. Even if a Democratic majority doesn't support the Merkley-Udall effort, a record vote sets the stage for future organizing, building politically on the continued obstruction of McConnell and his allies. David Cohen Washington, DC
- mogen
January 23, 2013 at 12:05pm
Tim Noah, thanks for ruining my appetite for lunch (and probably dinner and breakfast tomorrow) with that reference to masturbation and Harry Reid.
- wildboy
January 23, 2013 at 12:36pm
Regarding the comments -- Oh, really? We've had since Kennedy died, and left the Senate without a 2/3 majority, and the Republicans filibustered just about everything. Shoot, just last month, McConnell had to filibuster HIS OWN BILL. Filibuster reform is desperately needed. Reid rejected his first opportunity, in January 2010, turning back demands from the Democrats that reform was desperately needed then. McConnell then went on a filibuster spree, stalling action in the Senate again and again. Reid promised filibuster reform for this congress, using majority voting if necessary to do so. I'd hate it if he folded completely, and I hope whatever approach he winds up with is effective. Otherwise, it's yet another 2 to 4 years of gridlock.
- AllanL5
January 23, 2013 at 2:22pm
Tim: Why do you want filibuster reform? I'm conservative. There's plenty of things I want blocked unless there's a 60 vote majority. You're liberal. There are plenty of things you want blocked unless there's a 60 vote majority. Some examples? But for the filibuster all of the Bush tax cuts would be the permament law of the land 12 years ago and Miguel Estrada would be on the DC Court of Appeals, if not the Supreme Court. Maybe some requirement to talk makes some sense. But we both know that the reason the filibuster has been used so much is because Reid won't allow the GOP to provide amendments to bills that would force his red state Dems to cast tough votes. I don't get it. Just don't. --Bob
- bob1239
January 23, 2013 at 3:18pm
Masterbation jokes aside (Ezra Klein didn't use one, but he's so squeaky clean), the more I read about the filibuster, the more questions I have about why it's even allowed. It almost seems illegal in any form--an abuse of some ancient loophole. Like the right to bear arms, it's probably impossible to abolish, but geez, what a impediment to an already dysfunctional government. (The more I learn about our rules of government, the more I understand why things are so effed up... but I suppose ignorance can only bring so much bliss...look at the Republican party.)
- jpell64
January 23, 2013 at 6:37pm
Well, Bob, Republican senators will now get two free amendments to bills. We will see if the filibuster is now not "used so much." Jpell, your theory of some ancient loophole is just about correct. In a re-write of the Senate rules, Aaron Burr convinced the senators that the standard parliamentary motion for a vote (to "call the question," I think it is called) was not necessary, because in Burr's years in the senate, it was almost never needed. The result was that unanimous consent was needed to call a vote. Nevertheless, filibusters were seldom employed until later, on anti-lynching laws, attempts to address Jim Crow, and the like. Eventually, the number of senators required for cloture was reduced to sixty-seven, then sixty. You can find several fairly concise histories on-line, if you Google filibuster reform. In a recent case called Common Cause v. Biden, several plaintiffs tried to get a U.S. District Court to declare the filibuster unconstitutional. The court dismissed the case, and I am not sure whether the plaintiffs appealed, but I would be surprised if they do not. They had excellent counsel and a pretty persuasive argument that the filibuster violates the constitution. The court, unfortunately, decided that none of the plaintiffs had standing, and the question presented was explicitly delegated to the senate by the consitution. Again, you can get more information with Google.
- peterpalys
January 26, 2013 at 3:44am
Certainly it is worth considering that Republicans have a majority in the House. But President Obama has been able through public pressure to get Speaker Boehner to bring bills to the floor even when they did not have the support of a majority of Republicans, thus violating the Hastert Rule. The bills passed via a coalition of Democrats and Republicans from the Northeast, the West Coast and the Midwest. This may yet set a pattern in the House, as the electoral interests of Tea Party Republicans and more moderate Republicans diverge. But if Repubicans in the Senate decide to repeat their performance of the 112th Congress, virtually nothing will pass the Senate.
- peterpalys
January 26, 2013 at 3:54am
sure: a muster of 41 votes to continue a filibuster should ALWAYS be made possible only at 3 A.M.!
- cdmcl3
January 28, 2013 at 10:06am