WASHINGTON – Recent changes in the Senate’s filibuster rule, a longstanding procedure that some reformers want to abolish, wound up doing little to disrupt the tactic, investing the legislative minority with the continued opportunity to make political hash of the majority’s whims.
Senate Democratic Leader Harry Reid, of Nevada, after announcing last week that he had reached an agreement with Senate Republican Leader Mitch McConnell, of Kentucky, on a few small modifications, told reporters he wasn’t prepared to dump the rule requiring sponsors of certain legislation to collect 60 votes in the 100-member upper chamber to assure a vote.
“Today, we took steps towards ending gridlock in the Senate and making this body a more efficient place while still respecting the rights of the minority,” Reid said. “Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class — not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion and weaken the ability of those who seek to obstruct for obstruction’s sake.”
Just how the refurbished filibuster rule will accomplish that feat is unclear.
Under the agreement, adopted by the full Senate, the majority leader, Reid in this case, can sidestep a filibuster imposed to obstruct debate. He can accomplish that by either reaching an agreement with the minority leader, in this case McConnell, and seven senators from each side to proceed to a new bill or allowing the minority to offer two amendments to the proposed legislation.
The new rule, however, does nothing to halt a filibuster blocking a final vote on legislation. In other words, Reid has been afforded an opportunity to circumvent a filibuster that prevents debate. But sponsors still might require the consent of 60 members to proceed to a vote.
Limits on debates regarding sub-cabinet and district court nominations are also included in the agreement.
The feebleness of the change could be on full display if or when the full Senate takes up the nomination of former Sen. Chuck Hagel (R-Neb.) to serve as the next secretary of defense. Hagel, despite being a Republican, has attracted support from only two GOP lawmakers in the upper chamber and there is some discussion that someone – perhaps Senate Republican Whip John Cornyn, of Texas, leading the opposition – may institute a filibuster.
The move would be unprecedented. No cabinet nominee has faced a filibuster since the Senate approved the 60-vote threshold almost 40 years ago.
The deal didn’t sit well with reformers, some of whom favored the “nuclear option” – prohibiting the imposition of a filibuster to stop a vote, thus permitting legislation to pass by a simple majority rather than requiring it to attract 60 votes.
Common Cause, a nonpartisan “good government” group that has received some funding from George Soros’ philanthropic organization, is challenging the constitutionality of the filibuster in federal court and turned a thumbs-down on the deal.
“My friend Harry Reid, the senator from Searchlight, NV, has gone missing in the fight for filibuster reform,” said Common Cause President Bob Edgar. “The deal he and Sen. McConnell have struck allows individual senators to continue blocking debate and action by the entire body and to do so without explaining themselves to their colleagues or the American people. This is not the Senate of debate and deliberation our founders envisioned.”
Reform-minded lawmakers also expressed displeasure.
“This country faces major crises in terms of the economy and unemployment, the deficit, global warming, health care, campaign finance reform, education and a crumbling infrastructure – to name a few,” said Sen. Bernie Sanders (I-Vt.), who caucuses with Democrats and voted against the changes. “In my view, none of these problems will be effectively addressed so long as one senator can demand 60 votes to pass legislation. The rule changes adopted today are a step forward in making the operations of the Senate more efficient and expeditious. They are not enough.”
Sanders said a filibuster imposed to permanently obstruct the wishes of the majority is “a perversion of democracy.” And use is on the rise. When former President Lyndon Johnson was Senate Democratic leader in the 1950s – during the administration of Republican President Dwight Eisenhower – he filed cloture to end a filibuster only once. Reid has done so 390 times.
Sanders expressed support for a “talking filibuster” – requiring those who employ the tactic to hold the floor continuously and explain the reasons behind their objections.
“They should not, however, continue to have the right to abuse arcane Senate rules to block a majority of senators from acting on behalf of the American people,” Sanders said.
McConnell viewed the agreement as a victory for the Republican minority, trumpeting the accomplishment in a fundraising letter to his Bluegrass State constituents. The letter claims McConnell stopped the reform effort “dead in its tracks,” arguing that “a group of the Senate’s most liberal senators, fueled by left-wing groups like MoveOn, have been pushing a dangerous scheme to change the rules of the United States Senate and fundamentally alter the checks and balances of our system.”
After the vote, McConnell said the change in the rule “means that the voices of the members of the minority party and their constituents will still be heard in the Senate. Taking away that right, as some had threatened, would have been a terrible mistake.”
And he indicated the alteration might render some filibusters unnecessary.
“Members on both sides of the aisle should be able to represent their constituents both in committees and on the floor through vigorous debate and a robust amendment process,” McConnell said. “It’s my hope that as we turn to the challenges we face as a nation, the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”
Not everyone on McConnell’s side of the aisle was pleased with the results. Sen. Rand Paul (R-Ky.) insisted Senate Democrats “succeeded in seriously weakening the greatest deliberative legislative body in the world.”
“The rules change limits the ability of Senators to offer amendments, stifles debate, and greases the skids for Democrats to implement more of their tax-and-spend agenda,” Paul said. “For these reasons, I voted no.”
The filibuster has been around for a long time but its persistent use is of recent vintage. The Senate in 1806 adopted rules that failed to include a provision on ways to end a debate, opening the door to protracted discussions that could, as a result, kill consideration of legislation by talking it to death. The most famous filibuster of the nation’s early years came in 1841 during a debate to charter the second national bank. When Sen. Henry Clay, of Kentucky, a member of the Whig party, called for a vote, Sen. William R. King, a Democrat from North Carolina and future vice president, refused to end the back and forth, telling Clay that he “may make his arrangements at his boarding house for the winter.” Clay eventually backed down.
A rule permitting cloture – a move to end debate and move to a vote – was adopted in 1917 with two-thirds of those voting needed to move the question. The current 60-vote requirement to invoke cloture was introduced in 1975. In the early 1970s the Senate established a two-track system, which permitted lawmakers to consider other legislation while a bill was being filibustered — effectively ending the practice requiring those blocking consideration to remain on the floor in sometimes marathon sessions.
The most famous filibusters came in the late 1950s and early 1960s over civil rights legislation. Sen. Strom Thurmond of South Carolina holds the record for a filibuster, maintaining the floor for 24 hours and 18 minutes during consideration of the Civil Rights Act of 1957, which eventually passed.
Regardless, for most of its history the filibuster was a seldom used tool. From 1917 to 1970 cloture was invoked 58 times. During the 92nd Congress in 1971-72 the number suddenly jumped to 24. But the real increase began with the 110th Congress in 2007-2008 when 139 cloture motions were filed – the all-time high. The 111th Congress in 2009-2010 was almost as busy with 137 cloture motions filed. Usage slowed a bit during the 112th Congress when the filibuster was used 115 times.