I’d like to add to Ezra Klein’s fine piece on the primacy of process that despite people thinking they understand process better than policy, they absolutely do not. In fact, even the most studious political junkie is likely to ask process questions that they ought to know the answers to, but don’t. You see these comments all the time in threads in the progressive blogosphere. For example, people constantly ask Harry Reid to make the Republicans filibuster the old-fashioned way by reading from the telephone book all night and day. What they don’t realize is that Rule 22 (PDF) is the only way to cut off debate and force a vote. And even if Harry Reid decided to force unanimous consent by refusing to schedule any other business, the Republicans could simply make an endless number of quorum calls (noting the absence of a quorum even if there is one). They wouldn’t have to read from the phonebook. During an old-fashioned filibuster most viewers at home watching C-SPAN would just hear the clerk reading the roll. We can change Rule 22 with 51 votes at the opening of the next Congress, but we don’t have the votes to change the rule until that time.
Now, we could pick a very high profile fight over something. It could be an important nomination or it could be for an up or down vote on health care, or some other bill. Reid could simply announce that he isn’t scheduling anything new on the Senate schedule until the Republicans agree to pass a cloture motion or grant their unanimous consent to end debate and hold a vote. And we could complain very loudly in the press about how this very important thing is stalled because of Republican obstruction and make it an object lesson for the people to see how majorities don’t rule in Washington anymore. In fact, it might be best to do this on something most people see as fairly uncontroversial like an appointment to the National Labor Relations Board. That way, the Republicans wouldn’t have much of an argument in their defense. People pretty much agree that the president should be able to fill positions in his own administration unless there is some ethical question involved. But, either way, even if Reid did do this, we still wouldn’t see senators standing up the well of the Senate reading from the phonebook unless that is what they wanted to do. More likely, they’d team up to make a bunch of small speeches followed by endless quorum calls.
A more important point is that Klein is right about the Democrats not putting enough thought into process. They spent the whole first year chasing 60 votes and they finally got there in September when Paul Kirk was seated. You have to question the wisdom of a strategy that relies on having 60 votes because anything can happen. A senator can get sick and be unavailable to vote. A senator can die. But if you are pursuing a strategy that relies on 60 votes, you have to be damn sure to have the vote as soon as possible after you actually get your 60th vote.
Meanwhile, you have to have a Plan B. And you have to nurture that Plan B with the public. You have to remind everyone that you’re willing to make some compromises to get your bill passed using Plan A, but if that doesn’t work out, you’re going to Plan B. Because the Democrats refused talk about reconciliation as both a threat and a promise, they lost momentum for it. The press, the people, the Republicans, and even half of the Democrats became convinced that the Republicans could kill health care reform with 41 votes. That’s absurd.
One other thing to think about is how the Republicans are using the cloture rule to wipe out weeks of legislative days. Everytime cloture had to be invoked (this is when it is successfully invoked, mind you) it takes up a ton of time.
There are several stages to the process of invoking cloture.
• First, at least 16 Senators sign a cloture motion (also called a cloture petition) that states: “We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate upon [the matter in question].”
• To present a cloture motion, a Senator may interrupt another Senator who is speaking. When the motion is presented, the clerk reads it.
• The cloture motion then lies over until the second calendar day on which the Senate is in session. For example, if the motion is filed on Monday, it lies over until Wednesday, assuming the Senate is in session daily. If the motion is filed on Friday, it lies over until Tuesday unless the Senate was in session on Saturday or Sunday.
• The Senate votes on the cloture motion one hour after it convenes on the second calendar day after the cloture motion was filed, and after a quorum call has established the presence of a quorum. The time for the cloture vote may be changed by unanimous consent, and the required quorum call is routinely
waived.
And then, having succeeded in mustering the three-fifths requirement, the rule provides for an additional 30 hours of debate. So, it’s easy to see that it takes almost a full work week to force a vote on anything unless the Republicans offer unanimous consent. And with guys like David Vitter, Jim DeMint, and Tom Coburn in the Senate, and with a complicit Mitch McConnell, there’s no unanimous consent for virtually anything.
The importance of this is that delay works. If it took three months to pass a resolution praising the Girl Scouts, voters would hate the Girl Scouts by the time it was all over. And then there is the matter of appointments that go unfilled. To get a vote on an appointment, Harry Reid needs to be prepared to spend four to five days to get it done. He can move to other matters in the interim, but those are blocked, too. So, the Republicans are using process to the maximum extent they can under the rules and the Democrats only really began to fight back in earnest after they lost the sixtieth vote. Call it a lack of expertise about process, call it inability to understand the politics of process, call it a lack of backbone. Call it whatever you want, but something’s got to change.
