I’ll admit that Senate procedure is pretty boring, but it is also very important. Because the Senate has traditionally protected the minority party’s right to obstruct, this country has enjoyed tremendous stability. In one case, our shameful Jim Crow laws, the stability was unfortunate. But the power of the minority in the Senate also helps explain why the Republicans were unable to dismantle Medicare in the 1990’s or privatize Social Security in 2005. It also serves to protect ObamaCare against repeal.
The editors at the National Review are opposed to Senate Majority Leader Harry Reid’s plans to amend the rules of the Senate even though they were supportive of efforts by Senate Majority Leader Bill Frist to amend the rules in 2005. In 2005, the Republicans were frustrated that the Democrats were refusing to allow votes on a handful of judicial appointments and they began to make the argument that the Constitution does not require a supermajority in the Senate to confirm executive branch appointments. The National Review took the position that the filibuster is a convention of the Senate that can be changed without doing any harm to the Constitution. They still feel that way, but they argue that Reid’s proposed changes are “deeply unwise or even obnoxious.”
Their concern focuses on the minority’s ability to offer amendments to bills. Specifically, they are concerned with the practice of “filling the tree.” There is no simple way to explain what filling the tree means, so I refer you to this study (pdf) of its use and effect in recent years. I think the study undermines the case that Reid’s proposed reforms will do much at all to limit the minority’s ability to offer amendments.
The basics of what Reid wants to do are not that complicated. There are 100 senators and any one of them can refuse to grant their consent for moving to the next order of business. This allows the minority to slow down progress in the Senate for the sake of slowing down progress. They can object not because they oppose a law or an appointment, but simply to force Harry Reid to file for cloture. Once Reid files for cloture, he has to wait 30 legislative hours to have a vote to overcome the lack of unanimous consent in the Senate. This is distinct from the 60 vote requirement to pass legislation in the Senate. What we are talking about is the 60 vote requirement to do anything in the Senate if even one senator refuses to offer their consent. What Harry Reid wants to do is to eliminate the need to have unanimous consent to begin debate on a bill or appointment.
It’s important to remember that it only requires 50 votes (plus the tie-breaking vice-president’s vote) to pass legislation in the Senate if there is unanimous consent to hold the vote in the first place. It is only the lack of unanimous consent that triggers the cloture vote, and it is the cloture vote that requires 60 votes to overcome that lack of unanimous consent.
Reid does not propose any changes in the cloture rules for final passage of a bill or approval of a nominee. He only proposes eliminating the requirement that the Senate have unanimous consent to begin debate on a bill.
Now, one reason the minority likes the unanimous consent requirement to begin debate on a bill is because they can use that requirement as leverage to make the Majority Leader accept votes on their proposed amendments. They will ask for votes on certain amendments and threaten to withhold their consent unless those votes are granted. Eliminating the unanimous consent requirement to begin debate would appear to remove this leverage for the minority, but not because of anything having to do with “filling the tree.” Filling the tree is just a term used to describe an effort by the Majority Leader to prevent any proposed amendments. As the study shows, it isn’t actually all that effective. And whether it works or not has nothing to do with the unanimous consent requirement.
In the normal course of business, the Senate Majority and Minority Leader will come to an agreement about which amendments will be allowed and how much time will be set aside to debate both those amendments and the overall bill. Once this agreement is made, the whole Senate grants their unanimous consent to wave their right to talk incessantly and debate begins. If there is no unanimous consent agreement about beginning debate then there is also no unanimous consent agreement about limiting senator’s time to speak. That is why Reid’s reforms would reintroduce the “talking filibuster.”
While the proposed change seems minor, it would free up a lot of time for the Senate to actually do things rather than sitting around constantly waiting for a cloture vote to “ripen.” It would force the minority party to actively (rather than passively) obstruct laws and nominations, making it less likely that they would do so frivolously. It would force the minority party to obstruct in a very public way so that there would be much more transparency about what they are doing.
While I share the National Review’s concern about the impact on the amendment process, the rest of their concerns seem both overblown and narrowly political.
If the proposed changes sound minor and the means of change arcane, let us simplify things: The Democrats look back at the last four years, in which they fundamentally reshaped the financial and health-care industries — in the latter case without the support of any Republicans, most independents, and some Democrats — and think they didn’t jam enough things through.
The filibuster is considered a threat to the velocity of the progressive agenda. Card check, cap-and-trade, and the like are the proximate ends of Senator Reid’s “reforms.” And should those reforms prove insufficient, he will have executed them in such a way as to set the precedent for their expansion, or for the elimination of the filibuster altogether, with 51 votes.
In the short term, the Democrats cannot get Card Check or cap-and-trade through the House, so there is no need to worry about those bills becoming law. And both bills would still fail to overcome a Republican filibuster in the Senate if the Republicans remained determined to talk them to death. The only thing that would change under the proposed rule change is that Harry Reid could begin debate on Card Check or cap-and-trade. He still could not compel an end to the debate and an up-or-down vote on final passage.
If Harry Reid can explain how the minority’s right to offer amendments will be protected in the new scheme, I see no reason to object to his proposed reforms.