Harry Reid and the Filibuster

Here’s an interesting factoid about Harry Reid’s decision to hold cloture votes for the Wall Street reforms on four successive days:

Steven Smith, a political science professor at Washington University in St. Louis, who is working on a book about party leadership in the Senate, said Reid’s tactics are highly unusual.

Smith said the last time he knew of a Senate leader holding multiple cloture votes in succession was more than 20 years ago when then-Majority Leader Robert Byrd (D-W.Va.) held seven votes to advance a campaign finance reform measure.

So, from an historical perspective, what Reid is doing is highly confrontational and unusual. But, why might the Majority Leader be acting in an anomalous way? Could it be related somehow to following chart? The chart details how many times ‘cloture needed to be invoked’ in each Congress going back to the first of John F. Kennedy’s administration. Now, what do we mean when we say that cloture ‘needed to be invoked’?

The Senate operates by unanimous consent, which means that any member can prevent the whole body from moving to a new piece of business by withholding their support for a motion to proceed to that business. If any member withholds their support, the only way to proceed is to file for cloture, wait a couple of days, and then get three-fifths of the duly-sworn senators to vote to override the objection. The ostensible purpose of this rule is to allow a senator time to consider a piece of legislation or a potential nominee, not to give effective veto power to every member of the Senate. Honestly, the unanimous consent rule was not intended to protect the minority, but to protect individual senators, many of whom had to travel long distances to Washington without the benefit of air travel. However, since the 1960’s, and particularly since the Roe v. Wade decision, the filibuster has been used by both parties as a way of wringing concessions out of the majority, or of outright blocking their ability to confirm nominees or bring up legislation for debate.

Both parties have been guilty of abusing the filibuster rule, especially where it concerns the courts. This has been driven, in the main, by the Republicans’ determination to fill the courts with judges who do not honor stare decisis with respect to the Roe v. Wade decision (and the Democrats’ determination to protect that ruling).

However, as you can see from the chart, the Republicans have broken all precedent in this Congress, nearly doubling the annual record for filibusters last year and projecting to outdo themselves this year. There are dozens of nominees awaiting a confirmation vote, and virtually nothing is allowed to come to floor without first passing a cloture vote. Even bills and nominees that have overwhelming support are denied unanimous consent just to slow down the overall legislative process. This isn’t how any previous minority has behaved and it is destroying the Senate’s (and, therefore, the government’s) ability to function.

So, it’s only within this context that we can understand Majority Leader Reid’s newfound pugnaciousness and lack of civility. It’s fine for The Hill to attribute this to Reid’s woeful polling numbers, because those numbers certainly inform his thinking. But part of the reason Reid is unpopular back home is because Republican obstruction makes him look weak and ineffective. And he is ineffective so long as he allows this obstruction to succeed and go unpunished. He has to find some way to make the Republicans pay a price and he has to fight for the president’s agenda. He really has no choice and the people will probably reward him if they see him (and understand why he is) fighting back. However, the effectiveness element of this is more important than any potential political benefit.

In the longer term, the Senate can change the filibuster/cloture rules in January, at the beginning of the next Congress. Considering how dysfunctional the Senate has become due to this unprecedented abuse of the filibuster, the Democrats ought to change the rule so that it serves its intended function, which is to protect individual senators, not serve as a weapon of the minority.