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Think Congressional Gridlock Is Bad? If Reid Changes Filibuster Rules, Look Out

Dec 1, 2012
Originally published on December 3, 2012 12:44 pm

Sen. Carl Levin, the Michigan Democrat who chairs the Senate Armed Services Committee, was clearly frustrated with the tactics some of his colleagues were using to gum up the legislative process.

The mere threat of a filibuster of a procedural motion to allow the defense authorization bill to be considered on the floor caused the Senate's leadership to balk at scheduling the legislation at all.

So on Tuesday, an exasperated Levin told journalists gathered around him outside the Senate chamber that he was urging Senate Majority Leader Harry Reid of Nevada to damn the torpedoes and bring the bill up to the Senate floor for consideration:

"Call the bill up ... and say, 'You want to filibuster? Go ahead. Stay all night and filibuster.' The public will know who it is that's filibustering the defense authorization bill. At some point you just got to use the rules essentially to flush out who it is that's obstructing this place."

It never got to that point. The filibuster threat vanished and, by Wednesday, the bill had moved to the floor, where amendments were debated and voted on.

But while Levin's immediate problem disappeared, the frustration he expressed remained very much alive among the Democrats who control the Senate.

Virtually every student of Washington gridlock knows the Senate has become the very definition of a legislative graveyard, in part because of the frequency with which Senate Republicans invoke their right to filibuster legislation and presidential nominations.

Of course, when Democrats were in the minority, they resorted to filibuster threats, too, eliciting howls of outrage from the Republican majority and GOP threats to change the Senate's rules.

The number of threatened filibusters by the Republican minority, however, significantly exceeds what Democrats did when they were the minority party, according to the Brennan Center for Justice at New York University, which has tracked the trend.

It's also tracked another growing trend — Reid's refusal to let Republicans offer amendments to legislation by filling all the available spots with Democratic amendments, a practice known by the quaint term "filling the tree."

Actually, rare is the honest-to-goodness filibuster anymore, made famous in the 1939 movie Mr. Smith Goes to Washington, where senators actually either talked a bill to death or its supporters into making enough changes to end the filibuster.

'Weapons Of Mass Obstruction'

In recent times, just the threat of a filibuster has been enough to confound the majority. The senator making the threat doesn't even have to go public if he or she chooses not to.

The ease with which such modern-day filibuster threats can freeze the Senate helps explain why they are being made at a record pace.

It also explains why Reid, other Democrats and some policy wonks argue for reforming the Senate's rules. The aim would be to reduce what Norman Ornstein, an expert on Congress at the American Enterprise Institute, calls "weapons of mass obstruction."

Reid has warned that when the new Congress convenes in January, he's likely to push Senate rules changes to lower the threshold to just 51 votes — not the present 60 — for Senate leaders to move legislation to the floor. Reid's Democratic caucus now has 53 votes in the Senate, but will have 55 when the new Congress comes to town Jan. 3.

Changing the Senate rules would be aimed at curbing frequent threats by Republicans to filibuster not only legislation itself, but even the parliamentary motions that allow a bill to reach the Senate floor for debate.

The 'Talking Filibuster'

Reid said on the Senate floor Monday:

"We are going to change it so that it doesn't take us 10 days to simply get on a bill before we can start legislating. The American people know this is the right way to go. The only people who would think the Senate is working now with its obstruction at every step of the way are the Republicans."

Reid and his allies on the issue want to change and clarify the present rules to require, once again, the "talking filibuster" — Mr. Smith style. Being forced to stay on the Senate floor talking perhaps for hours, missing dinner and social events, would be a disincentive, supporters of that idea believe.

Another proposed change would place the onus on those going the filibuster route to come up with 41 votes to support their attempt at a legislative chokehold instead of forcing the majority to rustle up 60 votes to overcome a filibuster threat.

But for Reid to make the rules changes, he would likely need to ignore another Senate rule — one requiring 67 senators to agree to such an overhaul.

The potential price for doing that could be very high.

In the Senate, there are any number of ways for the minority to exact revenge, according to a Congressional Research Service report.

The Senate, for instance, operates on unanimous consent, meaning any individual senator can, in many cases, stop the Senate in its tracks by just saying "no" to further proceedings.

In retaliation, irate senators could also filibuster bills in committee. Or, if enough of them just didn't show up when committees were considering legislation, the panels could conceivably be unable to report out those bills to the full Senate, creating another legislative roadblock.

Along these lines, Sarah Binder, a George Washington University political scientist, observes that there could be some serious unintended consequences.

In a post on The Monkey Cage blog, she writes:

"A new rules regime ... could encourage senators to aggressively avail themselves of every procedural avenue in the Senate rule book for obstructing the Senate."

'Blowing Up The Senate'

Anyone who thinks retaliation wouldn't occur probably didn't spend much time listening to Senate Minority Leader Mitch McConnell in recent days. The Kentucky Republican likened Reid to a bomb thrower.

Describing all the bipartisan outreach he would have done if he had been in Reid's shoes — with a re-elected president of the same party and maintaining Senate control — McConnell said:

"The last thing on my list would have been to throw a bomb into the Senate, have it blow up and have everybody mad as heck. I mean, I'm just perplexed about the judgment on display here, blowing up the Senate at a time when the election is behind us. ... But that's a decision that, apparently, he's made, at least for the moment, and we'll have to live with the consequences."

And that doesn't even take into account the GOP-led House. In a Congress where neither chamber takes kindly to being told what to do by the other, House Speaker John Boehner on Thursday put Senate Democrats on notice. The Ohio Republican said in a statement:

"Senate Democrats' attempt to break Senate rules in order to change Senate rules is clearly designed to marginalize Senate Republicans and their constituents while greasing the skids for controversial partisan measures. I question the wisdom of this maneuver, especially at a time when cooperation on Capitol Hill is critical, and fully support Leader McConnell's efforts to protect minority rights, which are an essential part of our constitutional tradition. Any bill that reaches a Republican-led House based on Senate Democrats' heavy-handed power play would be dead on arrival."

In other words, if you think you've seen Washington gridlock, wait until Senate Democrats change the filibuster rules, if Republicans follow through on their warning.

By the way, if you have a few spare hours on your hands, you could alwats read the record of the Senate's 2010 hearings on the filibuster.

Here's just one interesting historical nugget from the testimony of Binder, the aforementioned political scientist: The filibuster was an accident.

It resulted from dubious advice Vice President Aaron Burr gave senators in 1805. He wrongly singled out as redundant a Senate rule that would have made filibusters impossible. The next year, senators jettisoned the rule. Still, it took decades before lawmakers realized there was little to stop them from using lengthy debates to stall the Senate.

Whether Burr changed American history more by killing Alexander Hamilton in a duel or unwittingly laying the groundwork for the Senate filibuster is an open question.

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