Sens. Carl Levin (D-MI) and Mark Pryor (D-AR) are identified in this Roll Call piece as two “Old Bulls” who are skeptical about Harry Reid’s plan to change the Senate rules to make it harder for the minority to obstruct the day-to-day business of the upper chamber. They are more concerned, however, with how Harry Reid intends to change the rules than with the rule changes themselves.
I don’t want to get too technical in this piece because your eyes will glaze over if I do. So, I am just going to lay out some basics about how the Senate works and what these rules changes would mean.
First, you should know that it normally takes 67 senators to agree to any rules change. For this reason, the rules almost never change. However, there is an opportunity at the opening of each new congress for the majority party to change the rules with a simple majority vote, with the vice-president potentially breaking a tie. The Republicans threatened to do this during Bush’s second term because they were frustrated at their inability to confirm more judges. Back then it was called either the Nuclear Option or the Constitutional Option. A Gang of 14 moderate senators brokered a deal on nominating more judges in order to avoid use of the Nuclear Option. The fear was (and is) that once one party invoked the Nuclear Option it would become the norm any time power shifted hands in the Senate. Better, skeptics think, to broker a deal that has more support than to open the genie’s bottle and to create a bunch of bad blood at the beginning of a new session.
That’s fair enough, but we also have to consider why Harry Reid is seeking the rules changes in the first place. To understand this, you have to understand a little bit about routine Senate procedure. The Senate operates by something called “unanimous consent.” There are 100 senators, and any one of them can stall things by refusing to lend their consent to whatever it is the Senate Majority Leader wants to do. If the Senate is engaged in open debate, for example, and Harry Reid wants to take up a bill on military spending, he will ask for unanimous consent to end open debate and begin debate on his bill. If even one senator objects, then Harry Reid needs to do something called “filing for cloture.” This isn’t quite the same thing as a filibuster, but it is the key element of how a filibuster works.
Filing for cloture basically means that Harry Reid has notified the Senate that there will be a vote to override the objections of one or more senators for moving to the next piece of business (in this case, a military spending bill). A couple of legislative days will go by while Sen. Reid waits for the cloture to “ripen.” When the cloture has ripened, there is a vote that requires 60 votes to pass. If less than 60 senators vote for cloture, then the bill has been successfully filibustered.
Let’s stop for a moment to think about this before moving on to other elements of the Senate rules. If the Republicans can demonstrate to Harry Reid that they have 41 or more votes against cloture, Reid will know that the bill is blocked and he won’t bother going through the whole process unless he wants to make a political point and put people’s votes on the record. But, even if only one senator objects, it will add a couple of days to the process of beginning debate on the bill. In recent years, the Republicans have refused to grant unanimous consent for many bills and nominations, not because they opposed those bills or nominations, but solely to chew up legislative days so that the Democrats would be able to produce less legislation in general. In other words, the Republicans under Minority Leader Mitch McConnell have been exploiting the “unanimous consent” requirement to gum up the works of the Senate. In particular, they have objected to “motions to proceed” to the next order of business simply as a stalling tactic and not on the merits.
It’s important to remember these mechanics of the filibuster, because most people associate the filibuster with senators talking for a long time. That is somewhat of an anachronism. Every senator has the right to talk for as long as they want. However, the normal procedure when a bill comes up in the Senate is for the Majority and Minority Leaders to come to some agreement about how many amendments will be allowed and how much debate time will be allotted. Before debate even begins, there will be a unanimous consent agreement that is agreed to that says, for example, that each side can offer five amendments and will have two hours to debate. In this way, the senators basically consent up front to limit how long they will talk. This is not where the problem has arisen. The problem has arisen because Harry Reid has been unable to get unanimous consent to begin debate in the first place.
So, what Reid proposes is to do away with the unanimous consent requirement to begin debate. However, there will still be a unanimous consent requirement to end debate. What would this do?
Most obviously, it would prevent the Republicans from making him wait two or three days to move to a new piece of business. If he wants to start debate on a nomination or a bill, he could do that with a simple majority. Then, in the absence of a unanimous consent agreement about the time for debate, individual senators could talk forever rather than consenting to end debate and go to a vote. We would have a restoration of the “talking” filibuster made famous by Jimmy Stewart in Mr. Smith Goes to Washington. To force an end to debate, the majority would still need 60 votes. No bills could be passed or nominees confirmed by a simple majority, so that would stay the same.
However, every filibuster would require the minority party to stand in the Senate chamber and talk. The Democrats could use any pause to ask for unanimous consent to end debate, and the Republicans would have to have someone there at all times to object.
The idea is that the higher visibility of the filibuster would exact a higher price and we would see many fewer of them. A determined minority could still block anything, but they’d be much less likely to do so frivolously. There would be no more “silent” filibusters where the public doesn’t even know who is objecting or why they are objecting.
The Democrats are united on the merits of these reforms but some of them are worried about making the changes through the mechanism of the Nuclear Option. Here’s how Sen. Carl Levin put it:
In an interview, Levin said that while he agrees on the substance of the changes under consideration, he was “dubious” about the procedural maneuver because it could establish a new precedent that a future majority — Democratic or Republican — could use to establish draconian rules.
“If the majority’s going to write the rules here, it becomes the House of Representatives,” Levin said.
His concern is valid, but so are the concerns of senators who are sick and tired of obstruction and gridlock. There is a possibility that the Democrats could present a credible enough threat of using the Nuclear Option that the Republicans will agree to some lesser rules changes to forestall the move. However, it appears that the White House is on board with Reid going ahead and going nuclear. We’ll see if McConnell wants to go over that cliff or not fairly soon.
