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In Part 1 of this 3 part series we discussed we got and what we didn't get in the way of Filibuster Reform at the beginning of this Congress.  Now its on to Part 2, were we will discuss the consequences we have faced and will certainly continue to face as a result of some Senate Dems. settling on minimal (Nano-Scale) reform.  In Part 3 to come, I will cover the rumors and speculation on further filibuster reform during the remaining two years of the 113th Congress.

While I will try to focus on the future and not the past, I can't promise that I won't express some disgust and outrage over the fact that Reid and a few other "Charlie Brown" type Dem. Senators once again got the football pulled away by Mitch "Lucy" McConnell and landed flat on their backs with the entire Republican caucus laughing at them.  But I will do my best to stay focused on the future and avoid lamenting about the past.  So if your interested (and I hope you are), please join as I jump /\ over the orange squiggle for some reality-based discussion on the filibuster.

First lets look at how the changes we got have panned out so far in the 113th Congress.  We'll go from the least to the most enforceable:

1. The completely unenforceable "Gentleman's Agreement" that says Senators who wish to object or threaten a filibuster must actually come to the floor to do so, and that the two leaders will make sure that debate time post-cloture is actually used in debate and not simply chewed up by long quorum calls where nothing happens.

The first part of this "agreement" has apparently already been violated since Senators Colburn and McCain recently held up the Continuing Resolution (a bill to fund the government beyond March 27) from coming to the floor without coming to the floor themselves.  They simply did it the old way by having the Minority Leader threaten the Majority Leader with a filibuster from off the Senate floor so they can have more time to read the bill (at least that's the reason they gave).  With regard to the second part of this agreement, it held up for a little while.  But after the cloture vote which got the Gun Bill to the floor, the Republicans apparently objected to Reid's Unanimous Consent request to move into the amendments and forced the full 30 hours of post-cloture "debate".

2. The new "Standing Orders" which have the same level of enforceability as the rules, but only applies to the 113th Congress will limit debate on motions to proceed to four hours, meaning they can't be filibustered, and guarantee each side the right to offer two amendments apiece, rotating in order and beginning with the minority.

This has allowed nominations to be brought to the floor without being delayed by a filibuster (the Hagel nomination comes to mind since it was filibustered for a time after it was on the floor, not before).  Probably, because there are no amendments to nominations, so Republicans can't put forth "poison pills" (amendments that look bad to vote against).  It has even allowed a few bills to come to the floor.  But there is a weakness in these Standing Orders which recently revealed itself.  You see, these Orders go hand in hand (a fact I wasn't aware of until recently).  If you want to limit debate on a Motion to Proceed to 4 hours so as to get it to the floor without a filibuster, you have to allow the minority to offer a minimum of 2 amendments on the bill itself.  This weakness was shown when Reid recently tried to bring the Continuing Resolution Bill to the floor.  Apparently McConnell was threatening to put forth amendments on the CR bill that were too poisonous for Reid to swallow, so Reid decided to forgo the benefit of the 4 hour limit on debate and proceed with going the old route by allowing the Motion to Proceed to be filibustered and filing a cloture petition which cannot (under the Rules) be voted on for something like 2 days.  Although the Republicans who were not united on this in the first place (at least Senator Shelby was opposed to this particular filibuster) did let the bill come to the floor the next day under Unanimous Consent, this instance did show how the minority can still hold up bills coming to the floor despite these new Standing Orders.

I thought this new Standing Order would be used to get the Gun Bill to the floor, but apparently Reid could not reach an agreement with McConnell on the two amendments the Republicans are allowed, so Reid was forced to break the filibuster on the Motion to Proceed with a Cloture vote (just like before).

3. One new Rule requires an immediate cloture vote to be held if a cloture petition garners the signatures of the majority and minority leaders, plus 7 senators not affiliated with the majority (i.e., 7 Republican Senators) and 7 more not affiliated with the minority (i.e., 7 Democratic Senators), and if that cloture vote garners the necessary 3/5s majority (i.e., 60 Senators voting "yes"), a straight simple majority vote can be held immediately thereafter to pass the Motion to Proceed (i.e., bring the bill/nomination to the floor).  Another new Rule reduces the three motions necessary to go to conference with the House to settle differences in bill text into one non-divisible motion.

The first new rule has yet to come into play.  Partly because of the Standing Order discussed above allowing bills/nominations to brought to the floor with only 4 hours of debate if amendments are agreed upon.  Still I don't see much immediate benefit to this rule since the Republicans are still pretty solidified.  Maybe it would prove beneficial some day in the distant future when a rouge group of Senators in the Minority decided to buck the Minority leader and object to a bill (i.e., mount a filibuster) he is in favor of, but I don't see much of a chance of it happening under this Minority Leader who has never seen a filibuster he doesn't like.  So this new rule is proving virtually useless in stopping the ongoing flood of filibusters.

The second new rule, requiring only one motion to go to conference with the House on a bill instead of three (i.e., only one filibuster opportunity instead of three) also has not had an opportunity to be used.  This is because there has been a general reluctance to go to conference which is not unusual when opposite parties hold the majority in each House.  The preference has been to "ping-pong" bills where each House passes different versions of a bill and it is sent back and forth between them until they settle on a single version.  However, it may come into play at times during this session with bills that majorities in both Houses would like to see get passed, but where each House passes a different version.  As an example, Immigration Reform which is picking up steam in both Houses could be one that goes to conference.  So the new rule could cut some time off in getting it to conference.  But while this rule may save some time on the processing of some bills, it really does nothing to address the core problem of out-of-control filibustering.

Well that ends the evaluation of the consequences the "reforms" we did get have had on the legislative process.  Overall, not much.  While they may have helped speed things up a bit (from a snails pace up to that of a turtle), they have done virtually nothing to lessen the frequency of filibuster use, as should have been expected.  With the exception of the budget bill which cannot be filibustered (its limited to no more than 50 hours of debate), all the bills I have seen have required a 60 vote threshold to pass, either via a cloture vote or by unanimous consent to set the bar for passing the bill at 60 votes (i.e., the silent filibuster).

Now lets look at the consequences that have already arisen and will arise in the near future with respect to the rules we wanted, but which we didn't get.  One being the "Talking Filibuster" which was proposed by Senator Jeff Merkley and separately by Senator Frank Lautenburg, and the other being what I have called the "2/5s Rule" which was originally floated by Majority Leader Reid before he once again lost his spine and decided not to bring it to the floor.  First, let's look at the "Talking Filibuster".

1. "Talking Filibuster" - The talking filibuster, as proposed by Senator Merkley, would kick in after the first cloture vote was held if that vote resulted in a majority of Senators voting to limit debate (51 or more if all 100 Senators are sworn in), but less than the 3/5s required (60 Senators if all 100 are sworn in).  This vote would signify that the Senate had voted for a period of "extended debate."  In short, after such a vote, Senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments. If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill. If the simple majority cloture vote were to pass -- and in most cases it would since the previous cloture vote already received a simple majority -- the normal period of 30 hours of post-cloture debate would proceed.

The talking filibuster would have caused Senators seeking to thwart a bill or nomination both physical pain and in most cases political pain where a majority of voters were in favor of the bill/nomination.  And it would have likely made it impossible for a singe Senator to sustain with the help of his colleagues.  In the end this rule would have resulted in a test of wills.  The will of the minority to maintain an indefinite presence on the floor in hopes of getting the majority to pull (scrap) the bill/nomination, against the will of the majority to keep the bill/nomination on the floor and allow debate to continue which puts a halt to all other pending bills/nominations.  At a minimum, it definitely would have resulted in more entertaining C-Span2 watching.

I am aware of at least one case so far where having this rule would have likely made a difference.  That case was the Hagel nomination for Defense Secretary.  In that case, the initial attempt at cloture failed by only a few votes (even some Republicans voted for cloture), mainly because Senator McCain and a few of his friends had a personal vendetta against Hagel.  This vote which occurred late in the week (I think it was Thursday), delayed the holding of the second cloture vote until the following Tuesday.  Under the presence rule, this was no big thing for McCain minority, since they just got to go home and come back on Tuesday.  But under the talking filibuster rule, McCain and a few of his buds would of had to hold the floor through the weekend for as many hours each day as the Majority Leader saw fit to have a Presiding Officer in the Chair.  Knowing how much Senators value their time off, I doubt if McCain would of been able to force a second cloture vote if his friends knew they would have to spend the next four days on the Senate floor instead of on the golf course to delay an inevitable nomination.

BTW, while we're on the subject of the Talking Filibuster, there has been a lot of talk about Senator Paul's "Talking Filibuster" on the President's Drone authority during the legislative process of confirming Haden for CIA Director.  Although it is true this was part of a Senate Debate, and Paul (with help from a few other Senators) was "talking" at length, this was NOT a "Talking Filibuster" in the sense of what Senator Merkley put forth in his proposed rule.  First of all, Paul was speaking on the floor during the two plus days required by the Senate Rules between the time the Cloture petition on the nomination was filed and when the first cloture vote can be held.  o he really wasn't delaying the nomination at all by holding the floor, since the Cloture vote was going to be held no later than the rules prescribe whether he was speaking on the floor or not.  Second he was not compelled to hold the floor to prevent a majority from achieving cloture as envisioned by Merkley's proposed rule.  Although Paul would like the media to portray his oratory as a Mr. Smith crusade, the fact remains that whether he spoke for 13 hours or just 13 minutes (or not at all) the outcome was going to be the same and he was not delaying anything.  Just a little aside to illustrate how the media often ms-characterizes what a filibuster really is.  

Going forward I see a number of upcoming bills where a talking filibuster rule would have been, in the words of VP Biden, "A Big F*#king Deal".  Can you imagine what it would have meant for the upcoming Immigration Bill and Gun Legislation.  Instead of being able to kill these bills by simply keeping no more than 4 Republican Senators voting "yes" on cloture vote after cloture vote, they would of had to continuously keep at least one Senator on the floor for however long Reid chose to have a Presiding Officer in the Chair (a true test of wills).  I can't be sure, but on legislation as important as Gun Control, I think Reid would have been willing to hold up all other Senate business to force Republicans into either holding the floor or crying UNCLE and let the bill move to a majority vote.  Not to mention the media frenzy that the spectacle would have created.  Granted we have achieved cloture on bringing the Gun bill to the floor for debate, but in a much weaker form since the rules require some Republican support (e.g., no limits on assault weapons or magazine clip size).  And whether it will survive a filibuster on passage of the bill without being further watered down is anybodies guess at the moment.  

Now let's look at the "2/5s Rule".

2. The 2/5s Rule - Rule XXII, the "Cloture Rule", presently requires 3/5s of Senators duly sworn to limit debate (60 Senators voting "yes" if all 100 Senators are sworn in).  This new rule, originally proposed by Harry Reid before he caved, would have called for 2/5s + 1 Senator (or 41 Senators if all 100 are seats are filled) to vote in favor of continued debate in order to avoid having debate limited to 30 hours.  This would have shifted the burden from the majority who presently need to get a 3/5s vote to limit debate, and place the burden on to the minority who would need  2/5s + 1 vote to avoid having debate limited.

The loss of this rule is extremely dis-heartening since while it was never certain whether Merkley had 51 votes for the "talking filibuster", the 2/5s rule was widely believed to have the necessary 51 votes to pass under the constitutional option before Reid decided to abandon it to avoid having to actually use the Constitutional Option.

Again, like with the talking filibuster, I can think of at least one instance where this rule may have prevented a filibuster.  It occurred when Reid attempted to bring to the floor the Continuing Resolution (CR) to fund the government through September so as to avoid a government shutdown.  This gets a little "weedy" (i.e., complicated) so bare with me.

When Reid attempted to bring this bill to the floor on a Tuesday, a couple of GOP Senators announced they were placing a "hold" on the bill, Cochran of Oklahoma being one.  Now, as I explained in ?Part 1? a "hold" is really just a Senator's threat to object and start a filibuster if an attempt is made to bring the bill to the floor via a "Motion to Proceed".  Although the new Standing Order limiting debate on the Motion to Proceed to 4 hours prevents such filibusters, it can only be used in conjunction with the other Standing Order which provides the minority the opportunity to offer up to two amendments on the bill when it comes to the floor.  Since Reid did not want to allow any amendments to be filed on the CR by the minority, for reasons I'll speculate on later, he couldn't use the Standing Order limiting debate to 4 hours, and was forced to operate under the rules which allow the Motion to Proceed to be filibustered.  So he had to file a cloture petition on the Tuesday which could not be voted on until Friday.

Although the two GOP Senators simply stated that they just wanted a little more time to read the CR, which is what they always say in these situations, the real reason was apparently that they were trying to force (or blackmail, if you prefer) Reid into allowing them to offer amendments on the CR in accordance with the combined Standing Orders discussed above.  How do I know this?  Because just before the cloture vote, Reid came to the floor and in an angry tone (not very angry, but as angry as Reid gets) announced that the Senators would not be getting their amendments, no way, no how, and that he would take his chances with the cloture vote.  Now, I have no idea what these amendments were.  They could have been the "poison pill" variety, or maybe they were harmless but Reid was just worried that if they passed the CR would have to go back to the House to be voted on again with a government shutdown looming.  But whatever they were, Reid opted for a cloture vote.

Before I get to the vote and how the 2/5s rule would have likely made a difference, you have to understand that this CR came out of Committee with truly bipartisan support.  Both the Dem Committee Chair and the GOP Ranking Member fully supported the CR with a number of Dems. and Reps. supporting the bill.  The GOP Ranking Member (Senator Shelby) even came to the Senate floor expressing his regrets and frustration over the delay.  In the end, the Friday cloture vote failed to reach the necessary 3/5s by only a few votes, further delaying the CR and forcing another cloture vote the following Tuesday (which passed as the two Senators announced they were dropping their filibuster threat.  The point is that the two objecting Senators simply had to make sure that no more than 3 other Republican Senators voted "yes" on cloture under the present 60 vote rule.  But if they had to get 39 other Republican Senators to vote with them to sustain a filibuster under the proposed 2/5s rule I doubt if they would have succeeded in doing so since a number of Republicans were not in favor of delaying the CR.  If those supporting Senators would have had the luxury of simply not voting as a way of having the CR proceed to the floor, instead of having to choose between voting with or against their fellow Republicans, the outcome might have been different.

Anyway, while not the "panacea", the 2/5s rule would of likely helped end some filibusters on a number of upcoming bills, because right now the Republican Party is as divided as they have been in years, and you would only need to have 5 Senate Republicans to either vote no or simply not vote, to end a filibuster.  Picking a single pending bill/nomination that this rule would have gotten past a filibuster is tough, because it could have made the difference in a number of cases, from guns to infrastructure to battles over Sequestration cuts to the Cordrey nomination.  But if you had to pin me down, I would have to go with Immigration Reform.  While the bill may have enough Republican support to avoid a filibuster altogether, it clearly has the support of at least 5 Republican Senators, and that's all would take to end a filibuster on Immigration Reform if we had the 2/5s Rule.

Lastly, before I close out this already too long Diary, I would like to argue against those who might say filibuster reform doesn't matter anyway with a Republican controlled House that could block everything.  We have already seen three examples, Sandy Relief, Violence Against Women Act and one other bill that slips my mind right now, of bills passed by the House by almost all Democrats and a minority of Republicans.  Evidence that if you can break a filibuster in the Senate, you have a shot at getting it passed by the House, not to mention the fact that nominations don't go to the House.

Well that' all for now.  Stay tuned for Part 3 where we'll explore all the rumors of further Filibuster Reform swirling around the Senate.

Originally posted to Doctor Who on Fri Apr 12, 2013 at 03:04 PM PDT.

Also republished by Community Spotlight.

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