Well the Filibuster Reform Battle of the 113th Congress is over (or is it?). Now I know its been over for more than two months now, but I had to get through my first 2 stages of grief, disappointment and anger (its never good to write a diary when one is crying or in a state of pure rage), before I could compose a diary series on the subject. In Part 1 of this three part series I'll take some time to recap what we got, what we didn't get in January. In Part 2, to come, I'll cover the consequences these results have had and will on past and upcoming bills/nominations. And in Part 3 (Another Diary soon to come), I will cover the rumors, possibilities and off-the-wall speculation on whether or not there will be any more action on filibuster reform during the remaining two years of the 113th Congress.
A little word of caution before I proceed. 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, and engage in some finger pointing (placing the blame where I think it belongs) regarding the missed opportunity for reform. 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 off, lets explore the reforms that did get passed (or agreed to). As discussed in this David Waldman Post, there are three different levels of change, and each one comes with a different level of commitment to those changes, as David explains below:
At the highest level of permanence, and therefore the lowest level of impact, there are actual changes being made to the standing rules of the Senate. These are the most minor pieces of the deal, which stands to reason because they'll be put in place permanently. So they're exactly the ones you would think would have to be smallest in order to get the Republicans to agree to them. Next, there are temporary changes in the operation of the rules that will be adopted as a standing order, good only for the balance of the 113th Congress, which is to say for the next two years. These are somewhat broader in scope, and represent the changes Republicans were more skeptical of, but were willing to try out on a temporary basis. And lastly, there are changes on which Republicans would only commit to a handshake deal. (We know how well those tend to work out from the last round of the reform fight.) But these include versions of proposed reforms we liked a little better, but watered-down to the point where Republicans were willing to say, well, we'll experiment with them and see if they're really as horrible as we said they were, but we won't commit to allowing them to continue if we really hate them.So lets start with the actual Rule changes:
1. One of the new rules provides a new short cut on the motion to proceed, that being the motion used to bring bills/nominations to the Senate floor for debate. The 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). Also, under this rule, if such a cloture vote garners the necessary 3/5s majority (i.e., 60 Senators voting "yes"), cloture will be immediately invoked and a straight simple majority vote can be held to pass the Motion to Proceed (i.e., bring the bill/nomination to the floor).
What good is this rule? To be honest, not much. First, it only involves the Motion to Proceed. It has nothing to do with limiting debate on a bill or nomination once it is on the floor. Also, I can't imagine a scenario where the Senate Minority Leader and 7 colleagues on his side of the aisle would sign a cloture petition on a motion being filibustered by presumably at least 40 members of the minority. There would have to be a huge rift within the minority for this to even be possible. What the rule does though is provide a possible way to save time (a precious commodity in the Senate) in getting a bill or nomination to the floor. In rare, if any, occasions where the Minority Leader and most Republicans want to see a bill/nomination brought to the floor that is being blocked by the objection of ONE or a few members of the minority, it does cut out the time it takes to get it on the floor. Specifically, it cuts out the almost two days for a cloture petition to "ripen" before a cloture vote can be held as required by standard rules, and it eliminates the required 30 hours of debate after cloture is achieved. So it does prevent a single Senator (or small group) from delaying by about a week, the beginning of debate on a bill/nomination that is supported by the majority and many in the minority including the Minority Leader. In addition, this rule has no real effect on the 113th Congress (i.e., for the next 2 years) because of a Standing Order that was passed which will be discussed later.
2. Another new rule will reduce the three motions necessary to go to conference with the House to settle differences in bill text into one non-divisible motion.
This effectively reduces three opportunities to filibuster a move to go to conference to one. In practice, under the old rule you would have to file a cloture petition on each of the three motions in succession to break three separate filibusters. That means you are talking about having to wait about 2 days for each cloture petition to ripen and 30 hours of post-cloture debate on each motion. That's a total of about 10 days, even if each achieves cloture (60 votes) on the first vote. Therefore, the new rule cuts that time down to about 3.5 days.
What effect will this rule have on the overall legislative process in the Senate? Again, not much. However, since it seems to reduce some of the hurdles involved in going to conference with the House on a bill, you might see a few more Senate/House Conference Committees in the 113th Congress and less "ping-ponging" where a bill gets bounced back and forth between the House and Senate until each body gets an amended version it can pass. If this does happen (and that's a BIG If), it could speed up the legislative process since going to conference is a much more efficient way to get to a bill that both bodies can accept than the "ping-ponging" method which can go on for weeks and months and can often result in a stalemate, killing the bill.
Well, that's the end of the actual rule changes, at least the substantial ones, and I use the word "substantial" very loosely in this case.
Now on to the new "Standing Orders" which have the same level of enforceability as the rules, but only applies to the 113th Congress unless incorporated into the rules or extended by the 114th Congress:
1. This standing order will, for the next two years, limit debate on motions to proceed to four hours, meaning they can't be filibustered.
This means all Motions to Proceed which are introduced for bills and nominations can only be debated for up to 4 hours (equally divided between the two sides of course), after which a vote will be held that will only require a simple majority (51 votes) to begin debate on the bill/nomination itself. That's why I said above that the new rule which allows for abridged cloture time frames on a filibuster of Motions to Proceed (under previously described circumstances) is moot for the next 2 years, because this new Standing Order does not allow Motions to Proceed to be filibustered. Besides giving the majority the ability to bring the bills/nominations to the floor that they want when they want, it also pretty much eliminates the ability of a single Senator or small group of Senators from placing a "hold" on a bill or nomination, secret or otherwise. Previously such holds were backed up by a threat to filibuster the Motion to Proceed based on an agreement between the Senator(s) placing the hold and the Minority Leader. However, since the new Standing Order does not allow Motions to Proceed to be filibustered, there is no threat standing behind a hold. Sure, the Senate Majority Leader can honor a hold if he/she chooses out of Senatorial courtesy, but he is under no threat to do so. As a result, formal holds on bills/nominations are over for at least the next two years, Yeah!
There is no doubt this Standing Order will help since it eliminates at least one filibuster on each bill/nomination. However, some might view this as taking away one of two opportunities to apply the brakes, meaning it does nothing to prevent the minority from stopping the car. Still a Standing Order that allows us to bring bills/nominations to the floor is a good thing, which would be even better if it can be incorporated into the Rules.
2. Another Standing Order guarantees each side the right to offer two amendments apiece, rotating in order and beginning with the minority.
If you're asking: How does this help move things along? The answer is, it doesn't. In fact it gives the minority the ability to slow things down (somewhat) by proposing amendments. It was simply the price Reid paid to get McConnell to accept the first Standing Order eliminating the filibuster on Motions to Proceed. You see, for years the minority has complained that the reason they have so frequently filibustered legislation is because the majority has prevented them from offering amendments. That's because of a procedural tactic called "Filling-The-Tree" (which I explained in this previous Diary, where the Majority Leader can block amendments. So by giving the minority the opportunity to offer two amendments, it takes away one of their excuses for filibustering, although I seriously doubt it will have any effect on the number of filibusters they engage in.
In practice, this may not be so bad. Since Republicans will want to block our amendments and we are more interested in moving the bill itself along, it will likely mean that the amendments will frequently come to the floor under unanimous consent agreement requiring 60 votes to pass. That's the old "painless filibuster", and it gives each side the ability to stop the other sides amendments with 4 votes in presumably rapid succession.
And lastly we have the "Hand-Shake" part of the deal, or "Gentleman's Agreement". Although completely unenforceable, here they are:
1. Senators who wish to object or threaten a filibuster must actually come to the floor to do so.
Whoa! That's a real burden on the minority! HA! HA!
2. 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.
Since the rules do not allow the Senate to conduct any other business during the 30 hour post-cloture period, it is a great way for the minority to delay action on the things the majority would like to do. Its even better when you can employ quorum calls to use up the time instead of actually debating. So what McConnell has apparently shaken hands on is that the minority will not use quorum calls during post-cloture as a way using up the post-cloture debate time without actually having to have his members on the floor debating. This seems to be Reid's attempt to create an incentive for the minority to agree to a unanimous consent agreement to either cut short or eliminate the 30 hours of post-cloture debate specified in the Rules, since no one wants to really debate a bill/nomination for 30 hours which has already garnered 60 or more votes.
Although this is just a "Gentlemen's Agreement" it is not completely without teeth since there are ways under the current Senate Rules (which I will not get into here) for the Majority Leader to force members to return to the floor in the event that McConnell reneges on his Quorum Call promise. However, since these "ways" exist in the present rules, Reid may be simply putting McConnell on notice that he might use them (Don't make me stop this car!).
Well those are the "Gentleman's Agreements". Since they are unenforceable, their only value would seem to be in their being broken by Republicans. Reid could then add them to the pile of hand-shake agreements which the Republicans have previously broken, and use them as ammunition to support the need for future rule changes. But who knows when, if ever, the pile of broken promises will get high enough for Reid to go for real Rule changes.
So that's what we got, now on to what we didn't get.
1. The "Talking Filibuster": Well, as we all know, we didn't get the "Talking Filibuster". As described in the quote below from one of the authors of the "Talking Filibuster", Senator Jeff Merkley, here's the new Rule we didn't get:
The Talking Filibuster Proposal: The talking filibuster proposes to bring the filibuster back into the Senate chamber before the American people. If a determined minority of at least 41 senators (assuming all 100 senators are voting) voted for additional debate, then additional debate would occur.I have my own opinion and analysis of how well this would of worked which you can read here in one of my previous diaries. But suffice it to say, it would of significantly reduced the number of filibusters and put some real hurt (not only political, but physical) on the minority party. Which I think is part of the reason why we didn't get it.
It would work like this. If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of "extended debate." In short, once the Senate has voted for additional debate, 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. This post-cloture period would be exactly the same as it is now (unless changed by a separate change in a rule).
Certainly, Reid should shoulder most of the blame, but I have to wonder if there were really 51 Senators in our caucus willing to pass it under the Constitutional Option. There were obviously a number of "weak-knee'ed" Dem. Senators who were reluctant to pass the "Talking Filibuster" out of fear that some day we might be in the minority and have to operate under such a rule, which they felt would be too burdensome and give too much power to the Republicans if the tables were turned. I have only one question for these Senators:
"What makes you think that if the Republicans someday find themselves in the majority they won't use the Constitutional Option to institute a "Talking Filibuster" Rule (or do away with the filibuster altogether), regardless of whether or not we passed it in this Congress?"
Personally, I think they're delusional to think that the Republicans won't do it in the future because we didn't do it now. Anyway, fortunately these Dem. Senators are mainly part of the soon to be outgoing "Old Guard" and the incoming New Guard of Progressive Senators do not share such baseless apprehensions.
2. The 2/5s Rule: The other rule we didn't get was what I call the "2/5s Rule".
The 2/5s Rule would shift the burden on Cloture votes from the majority to the minority. That is, instead of requiring 3/5s of the Senators to vote to limit debate (60 votes when all 100 Senate seats are filled) as required under the present rules, the new rule would have required 2/5s of the Senators to vote to continue debate (40 votes when all 100 Senate seats are filled).
Presently, since we have 53 Dem. Senators plus 2 independents that caucus with us, our side has to go fishing for at least 5 Republican Senators to break with their Party and vote to limit debate on a bill or a nomination to 30 hours (or less), and that's assuming all 55 Senators on our side will vote to limit debate which is not a sure thing in all cases. If the proposed 2/5s rule were in effect, the Republicans would have to continually muster at least 40 votes from their side to extend the debate on a bill or nomination (or keep their filibuster going, if you will), and our side would not have to muster a single vote. So instead of our side having to go vote hunting to limit debate, it would be the Republican's burden to muster the necessary votes among their ranks to keep debate going.
My personal opinion is that this would have gone a long way towards being able to more easily end filibusters, and even prevent some. Perhaps this rule would be even more beneficial to the cause of reigning in the filibuster abuse than the popular "Talking Filibuster" rule. I say that because the 2/5s rule would require the Republicans to continually get 40 Senators to vote to extend debate on a bill/nomination each time our side musters a mere 16 Senators to call for a cloture vote.
Under the talking filibuster rule, Republicans could, theoretically, keep debate going by having a handful of Senators hold the floor, perhaps as few as a half-a-dozen. This lets most of the Republican caucus off the hook, both physically and politically. Physically because they don't have to be on the floor to sustain a filibuster initiated by a few far-right zealots, and, more importantly, politically they can distance themselves from the zealots mounting the filibuster which is often putting the breaks on bills that our popular with their constituents (Hey, I'm not filibustering, its those other guys/gals in my Party).
However, under the 2/5s rule, 40 out of 45 Republican Senators would have to go on record as holding up a popular bill or nomination each time a cloture vote is held. While coming to the floor periodically to vote on a cloture petition may not be physically very painful, stopping a popular piece of legislation may be politically painful for enough Republican Senators so as to deprive the Filibuster'ers (is that a word?) from the 40 votes needed to keep debate going. Instead of be able to sustain a filibuster with a minority of Senators within the Minority, pretty much the entire Republican Minority would have to go on record supporting a filibuster to keep it going. Most Republican Senators would no longer be able to either vote "present" or sit out a cloture vote, which can give them political cover. They would have to vote for continued debate and go on record as blocking popular legislation. This would have been HUGE!
Although the 2/5s rule was being discussed somewhat during the lead up to the January rules debate, it was not one of the new rules introduced by Senators Merkley or Lautenburg. Surprisingly, it was floated by Harry Reid at the last minute. It also most likely had the support of at least the 51 Dem. Senators needed to pass the rule under the Constitutional Option. I say that because Senators like Carl Levin who were weak-knee'ed on the talking filibuster, openly said he could vote for Reid's proposed rule. So not only was it proposed by the Majority Leader which gives it substantial clout, it also likely had the necessary votes to pass under the Constitutional Option. So why didn't we get it?
I think its simply because Reid got "cold-feet" at the last minute about using the Constitutional Option to effect a rule change.
I think this is also true with regard to the "talking filibuster" rule and some of the other less important new rules we didn't get. I think Reid and a few other Dem. Senators were always reluctant with enacting new rules (or rule "changes") with 51 votes (i.e., the Constitutional Option) instead of with 66 votes as required under the rules themselves. I think they were prepared to use the Constitutional Option if the other side continued to refuse to contribute votes to any rule changes. However, when McConnell offered up an agreement to a few rule changes and standing orders that he would deliver enough votes to achieve the 66 vote threshold for rule changes under the rules, Reid and some other Dems. reluctant to use the Constitutional Option jumped at the chance to get some rule changes without "violating" existing rules. This, combined with the fact that Reid was anxious to move on to other important legislative matters that were urgent at the time (e.g., Sandy Relief Bill, etc.), led to the cave-in which prevented our side from getting the real rule changes needed to provide meaningful filibuster reform.
So what are/will be the consequences? Stay Tuned for Part 2!