I think it is time to explain what Chris Dodd (D-CT) is doing. I hear a lot of people applauding him and a lot of people demonizing Harry Reid (R-NV), but not a lot of understanding about the details.
The Senate likes to operate with unanimous consent. Let’s say that Harry Reid wants to begin debate on a bill. He’ll discuss the scheduling with Mitch McConnell, the Minority Leader, and they will negotiate out the amount of time alloted for debate and the number of amendments that it will be permissible to introduce. Technically, you cannot make a Senator shut up, so time constraints must be agreed upon by unanimous consent. If a Senator refuses to abide by the time constraints, it is called a filibuster.
The nature of the filibuster has changed over time. We no longer have actual filibusters where a Senator takes to the floor with an Encyclopedia and reads for 18 hours straight. That is too time consuming. Today, it is enough to announce your intention to filibuster to force the Majority Leader to move on to some other piece of business. An attempt to overcome a filibuster is called a vote for cloture. If sixty Senators agree to invoke cloture, they are agreeing to cut off debate and move to a vote. Sometimes the Majority Leader will introduce a vote for cloture even though he knows that he doesn’t have 60 votes. The purpose is to get everyone on the record as opposing a vote on the bill.
A Senator doesn’t have to filibuster, however, to put obstacles in the way of a vote on a bill. He can place a ‘hold’ on the bill. And he can do it anonymously. In this case, Senator Dodd has chosen to place a ‘hold’ publicly. He has announced that he will object to an unanimous consent request to move forward with a vote on the FISA bill if it has retroactive immunity for the telecommunications corporations. In order to overcome this, Harry Reid must get a majority of Senators to vote on a ‘motion to proceed’. It’s slightly different, but it serves the same purpose as a vote to invoke cloture, because the motion to proceed can itself be filibustered.
So, let’s walk through this. Harry Reid and Mitch McConnell will come together and negotiate out the details of the FISA bill debate. Debate will be limited to a certain number of hours and each side will be limited to three or four amendments. Then they will ask for unanimous consent to begin the consideration of the bill. Sen. Dodd will object, denying them unanimous consent. At this point, someone will introduce a ‘motion to proceed’ without unanimous consent. They’ll need 51 votes, but Dodd can filibuster the motion. So, really, they’ll need 60 votes to invoke cloture and proceed to a vote on the motion to proceed.
If Dodd loses this vote then he will also lose a cloture vote to end debate on the bill itself. In other words, even though Dodd has announced that he will filibuster the FISA bill if his hold is not respected, it makes no difference. All that matters is whether 60 Senators want to vote on FISA or not.
However, it is a little more complicated than that. When a senator places a ‘hold’ on a piece of legislation it is usually respected. It is almost always respected by the Senator’s own party. If you vote to proceed over a colleague’s ‘hold’, you can expect severe retaliation. As the chairman of the Banking Committee, there are myriad ways that Senator Dodd can make life miserable for anyone that crosses him.
Harry Reid will need eleven Democrats that are willing to piss off Sen. Dodd. Some likely candidates, like Sen. Carper (D-DE) and Tim Johnson (D-SD), are members of the Banking Committee and will be loathe to take sides. Others, like Teddy Kennedy (D-MA) would never cross their good friend.
There is one other way of looking at this, however. Why should one senator be able to hold up the business of the Senate? The use of the ‘hold’, especially when done anonymously, is an extremely obnoxious practice. If the caucus as a whole wants to proceed, they are within their rights to override Dodd’s ‘hold’. After all, the bill was voted out of the Intelligence Committee by a vote of 13-2…even Sheldon Whitehouse (D-RI) voted for it (Feingold and Wyden, did not).
Dodd is trying to get his caucus to do the right thing here. But the caucus probably does not want to do the right thing. They will try to convince Dodd to back down. If he won’t, they will be forced to appease him in some way or risk a very ugly confrontation.