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In Part 1 of this 3 part series we discussed what we got and what we didn't get in the way of Filibuster Reform at the beginning of this Congress.  In Part 2 we covered the legislative consequences of the reform we got and didn't get. Now its on to Part 3, were we will get into the fun part of covering the rumors about further filibuster reform this term.  Yes, we'll cover the steady barrage of threats (idle or credible, you decide) coming from both Majority Leader Reid and others regarding changing the Senate Rules mid-term to limit continued rampant GOP filibustering.  We'll also cover the "Nuclear" Option, the likelihood or un-likelihood we will see it used, and my thoughts on the whole state of affairs, or mess we are in.

So if your interested (and I hope you are), please join as I jump /\ over the orange squiggle for some more reality-based discussion on the filibuster.

Seemingly almost the day after the Senate passed the "skim milk" version of filibuster reform under the 2/3s vote rule, Dem. Senators began having regrets and started talking about the need for more filibuster reform (Well Daah!).  The regrets started over the initial filibustering of the Hagel nomination, where Harry Reid took to the Senate floor and said this, as originally posted in Brooklynbadboy's February 13th Diary:

Senate Majority Leader Harry Reid on Wednesday moved to end the Senate debate on whether to confirm Chuck Hagel to become the next secretary of defense. A vote is set for Friday.

The move was necessary, he said, because he could not come to an agreement with Republicans on handling Hagel’s nomination in any other way, leading minority members to opt to use their privilege to try to delay Hagel’s progress through the full chamber.

"This is the first time in the history that a presidential nominee for secretary of defense has been filibustered. What a shame," Reid said on the Senate floor.

Yeah Harry, its a shame!  Its a shame that you and a handful of other moderate Dem. Senators couldn't see this coming back in January when we all were screaming at you that this would happen if you don't pass meaningful filibuster reform.  Now as (almost) everyone expected, Mitch (Lucy Van Pelt) McConnell has pulled the football away again, and Harry (Charlie Brown) Reid has once again landed flat on his ass.   Sometimes I have to wonder if you don't have a masochistic streak from your old boxing days and actually like having McConnell punish you in the political ring bought after bought.

Then on March 6th, only a few weeks after caving on the use of the Constitutional Option to get REAL filibuster reform, Reid's regret turns into this slightest hint of re-visiting filibuster reform when Dick Durban said this with regard to the filibustering of D.C. Circuit Court nominee Caitlin Halligan, as originally posted by McJoan:

“We have tried at the beginning of this Senate session to avoid this kind of filibuster confrontation. The last several years we have had over 400 filibusters—a record number of filibusters in the Senate,” Durbin said.  "I don’t think our spirit of bipartisanship has shown much in terms of results.”
What spirit of bipartisanship?  The one that existed in your head, since it obviously was not in the heads of Senate Republicans when they were celebrating Reid's cave on reform in January.  Then Dick goes on to say:
“I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again,” the Illinois Democrat said. “We need to go back to it again. I’m sorry to say it because I — was hopeful that a bipartisan approach to dealing with these issues would work. [...] But if this Caitlin Halligan nomination is an indication of things to come, we’ve got to revisit the rules.”
Of course its an indication of things to come Dick.  You don't have to be "Carnac" to foresee that.  Look, its simple.  Republicans don't have the numbers to force through their legislative agenda (fortunately), so the only thing they can do with the numbers they have is stop our legislative agenda, which they can do easily under the present set of Senate rules.  To hope that Republicans will agree to bipartisan compromises simply because they can't get their legislation through has been proven time and time again to be a false hope.  If your aim is to get Republicans to agree to some bipartisan compromises (which is short of the goal of forcing through our legislative agenda without any Republican support) you have to establish rules which make it more difficult for them to block legislation.  But simply hinting at re-visiting the rules is not going to scare anyone.

Now onto the continuing frustrations over getting the President's nominations through the Senate due to the filibuster.  Well, as pointed out in this March 13th McJoan Post

"Three high-profile filibusters have convinced Senate Democrats that Republicans had their fingers crossed behind their backs when they promised to stop using the filibuster except in "extraordinary" circumstances."

Yes, remember that "gentleman's agreement" in which the Republicans promised to only block the President's nominee's in cases of "extraordinary" circumstances.  That was made years ago by the "Gang of 12" (or 8 or 14, I'm not sure) and has been violated by Republicans on numerous occasions since.  But Democrats have only now realized with these 3 latest nomination filibusters that Republicans had their fingers crossed when they made that deal. REALLY!

However, out of this frustration over nominations comes this from an Aide to one of the Dems. Senators in the Leadership:

“The general agreement was that Republicans would only filibuster nominees in the case of extraordinary circumstances, and once again Republicans are expanding the definition of that term to make it entirely meaningless,” the aide said.

The source said conversations are still too preliminary for Democrats to lay out publicly potential avenues of recourse just yet. And the last thing leaders want is to create the expectation that they will change the filibuster rules in the middle of the current Senate session. [emphasis added] But they are occurring in the wake of a series of GOP filibusters of top nominees, including a cabinet secretary (Chuck Hagel), the CIA director (John Brennan), and a federal judicial nominee (Caitlin Halligan) whom Republicans have effectively blocked from confirmation to the D.C. Circuit Court of Appeals for years.

If you're not talking about changing the rules in the middle of the Senate session (i.e., the "Nuclear Option"), than what exactly are the "potential avenues of recourse" you are not prepared to tell us about which would make Republicans stop willy-nilly filibustering nominees like Richard Cordrey and anyone to head up the ATF?  Hinting at unspecified actions is not making Republicans quake in their boots, it only gets then laughing at you.

Moving along, the "hints" at additional filibuster continue.  From this March 20th McJoan Post:

"After Sen. Jerry Moran (R-KS) decided to block the Senate from even discussing the budget bill while they were waiting for the cloture clock to tick down on the continuing resolution spending bill (a cloture clock made necessary by Sen. Kelly Ayotte's (R-NH) obstruction), Majority Leader Harry Reid once again lamented the obstruction and once again hinted that he just might have to do something about it."

Here's Reid's "threat":

“It is things like that that will cause the Senate to have to reassess all the rules because right now they accomplish so little,” Reid said late Tuesday on the Senate floor. “I’m disappointed.”
BLAH, BLAH, BLAH! Expressing your disappointment in Republicans does as much to correct their behavior as when you tell your kids you are disappointed in them and you expect that expression of disappointment in them alone will be sufficient enough to get them to change.

Reid's statement was followed by this from Durbin:

“I supported Harry’s decision to try to work out a bipartisan agreement on the rules because I think it’s in the best interests of the institution, but I can tell you the abuse that we’ve seen since then is not encouraging at all,” Durbin told reporters. “I think we need to get back to regular order, and that means stopping the abuse of the filibuster.”
Another bit of HOT AIR and nothing more.

But now the "hints" turn into "threats", as described in Brainwarp's April 6ths Diary.  Here's the "threat":

Senate Majority Leader Harry Reid (D-Nev.) said Friday that he will consider enacting the so-called "nuclear option," or changing Senate rules by a simple majority vote, if judicial nominations do not start moving through the Senate, Roll Call reports.

During an interview with Nevada Public Radio, Reid warned that he was willing to make drastic changes to Senate rules if action is not taken on the ballooning number of stalled judicial nominees.

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary," Reid said.

"If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action."

Is this threat real or idle?  I'll leave that up to you to decide.  But keep in mind it comes from the Majority Leader who in January balked at using the "Constitutional Option" which is supported by gobs of Senate precedent.  Now he is threatening to use the "Nuclear Option" which has little support from precedent.  Again, you decide whether Reid is or is not bluffing.  But what's important is what McConnell thinks, and my guess is he thinks Reid's bluffing.

A brief aside about what might be behind all the recent concern over the stagnation of appointment confirmations, especially with regard to Federal Judges.  The recent DC Circuit Court's decision to throw out one of President Obama's "Recess Appointments" as unconstitutional may have Democrats afraid that the recess appointment tool to bypass Senate filibusters on nominations, may be cut off by the courts.  That would mean the only avenue left to get nominees like Richard Cordrey into their posts is through the Senate, and unless something is done about the filibustering of those nominees, the Senate avenue will likely remain blocked.

And lastly in my recap of Senate quotes on filibuster reform since January, we have this Gem as posted on April 10th by the Great Kos himself:

"Senate Majority Leader Harry Reid's office, responding to our questions about whether they think the original filibuster deal with the GOP was working out:"

"Too many nominees have been blocked due to Republican filibusters. But even more nominees have been stopped by other means, with secret holds and other tactics. We have a large number of judicial emergencies around the country. That means we have too many cases and not enough judges, so I'm watching very closely -- as are the American people -- how these nominees fare in the U.S. Senate.

We made some changes to the Senate rules in January to help get nominations through more quickly, but time will tell whether these changes were sufficient enough[emphasis added]. We as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary."

Sorry, my head just exploded!  You need more time to tell if the ongoing Republican obstruction, which has shown absolutely no signs of abating, will continue!  You've got to be kidding Harry!

This constant cycle of "hints", "threats" and "walk backs" regarding further filibuster reform is accomplishing nothing.  Furthermore, the more such "threats" are repeated without any followup action, the more they lose what little, if any, effect they may have on Republican obstructionism.

This leads us into my discussion of the "Constitutional" and "Nuclear" Options for changing the Senate rules, and my opinion of both.  But first, a little warning.  You might not like what I'm going to say and many of you might disagree with my opinion, but I'm going to put it out there anyway in hopes that you won't beat me up too badly.

We need to start out by understanding there are important differences between the "Constitutional" and "Nuclear" Options, although the media often conflate the two as being the same.  Without getting too much into the weeds, the difference between the two is essentially this:

The "Constitutional Option" allows for the establishment of new Senate Rules at the beginning of each new Congress (every two years) through a simple majority vote, while the "Nuclear Option" entails changing a Senate rule, or rules, at anytime during a Congressional session through a simple majority vote.

That's basically the "Cliff Notes" version, but if you are interested in a greater explanation of these options (and I hope you are), I would urge you to visit my previous diary on the subject where I delve into the details (WARNING: It gets pretty "weedy").

Both options would seem to be "constitutional" based on Article I, Section 5 which states:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member."

Since the above only requires a 2/3s (or super-majority) for the case of expelling a member, it is therefore clearly implied that the Senate can determine its rules by a simple majority (just greater than 50%), and it doesn't specify any prohibition as to when rules can be determined.  

However, in terms of making changes to the rules, both seem to be in conflict with currently established Senate rules.  One being Rule V which states:

"The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."
And the other being Rule XXII which states:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."
In combination, the above two rules preclude any changes to the Senate rules EVER, without at least 2/3s voting in favor of the rules change.  But while both the "Constitutional" and "Nuclear" Options seem in conflict with these rules, a number of previous rulings by the Senate body have determined that, in the case of the "Constitutional Option", Rule V is trumped by Article I, Section 5 of the Constitution, thereby establishing a clear precedent for establishing new rules at the beginning of each new Congress by simple majority vote.  However, the "Nuclear Option" greatly lacks such substantial precedent, leaving it in direct conflict with Rule XXII.  It would in effect, do away with Rule XXII since it would allow a rule change by a simple majority vote instead of requiring a 2/3s majority.

Those who don't want to see the Senate become like the House, a body almost, if not entirely controlled by the majority, with the minority having little or no voice in legislation, fear that if a single rule change is made by the votes of only 51 Senators during a session, it will set a precedent starting a chain reaction of rule changes by the majority party during the session, leading to a situation where the minority has little or no power to thwart the will of the majority.  Hence, the term "Nuclear".

This all leads me to believe that since Reid balked at using the "Constitutional Option" to establish new rules making it tougher to sustain a filibuster, with all the precedent supporting it and reportedly 51 Dem. Senators ready to vote for at least some of these new rules, it is highly unlikely that he will now turn around and use the far more controversial and drastic Nuclear Option during the remainder of the 113th Congress.  Reid's history has been a series of threats followed cave ins, and I see no sign of him breaking this pattern, and neither do the Republicans.  True, he did once use a simple majority vote to overturn a ruling by the Chair on a series of Republican amendments put forth to delay a final vote on the bill (i.e., filibuster by amendment).  But that was simply about a clarification on existing rules, and was not about changing any rules.

Its also highly unlikely that Reid would be able to get the necessary 51 Senators to go along with using the Nuclear Option even if he wanted to use it.  Sorry, if this all sounds more pessimistic than you may like, but in my view its just being realistic.

While I am and have been a big supporter of using the "Constitutional Option" to establish new rules by a simple majority vote at the beginning of each new Congress, I have to be honest, I'm not a big fan of the Nuclear Option and here's why.

Whether its the "Constitutional" or "Nuclear" Option a case can be made for both that whether we use them or not, the Republicans can and are likely to use them against us if they someday achieve majority control of the Senate.  I in no way dispute this argument, in fact I agree with it.  However, with regard to the use of the  "Constitutional Option", that precedent has already been set (with in large part the help of Republican Richard Nixon when he was Vice President presiding over the Senate).  Since that Genie is already out of the bottle, our using it again will make no difference.  On the other hand, our use of the "Nuclear Option" to change the rules and in effect break Rule XXII, would be a first.  True, Republicans may still decide to break the rules and use the Nuclear Option down the road if they are in the majority even if we don't use it now.  But at least they won't be able to use the fact that we opened Pandora's Box to defend their breaking of the rules.  While I'm sure a number of you may disagree, I just feel its important for Dems. to be the Party that plays by the rules, and let the Republicans be the Party that breaks them if they chose to do so.

Finally, since I refuse to end on a sour note with some of you upset at me for my "pooh-poohing" of the Nuclear Option, let me just say that there are things that Reid could and should do (but probably won't) over the remaining term (i.e., until the next opportunity comes to use the Constitutional Option to put new rules in place) to cause the Republicans pain for their obstructionism that are allowable under the present set of Senate rules.  Here are just a couple of examples:

1. "Bring in the Cots" - Although the "Talking Filibuster" rule did not get passed, Reid, due to his floor supremacy as Majority Leader, can still under the present rules dictate the time and length of actual (Mr. Smith type) debating that will occur on a bill/nomination.  He can still, with the support of at least 51 Senators in his caucus to maintain a Quorum, arrange for lengthy LIVE debating to go on through the day and night if he chooses.  Granted he cannot compel any Republicans to show up or stay on the floor for the duration of such a debate, nor would the filibuster end if they didn't maintain a speaking presence on the floor as in the proposed "Talking Filibuster" rule.  But he can leave the Republicans with a tough choice.  They can either show up and remain on the floor to speak in defense of their position on a bill or nomination and in defense of their filibuster, or they can stay at home (or go home) and watch hours and hours of Senate Democrats pummeling them on C-Span.  My guess is that, faced with that choice they will, as they have done in the past, show up and stay on the floor to voice there position.  While this cause both sides the same amount of physical pain, it provides an advantage to Dems. since it gets the medias' attention and it allows us to show a LIVE version of Republican obstruction of bills that are popular with the public.

For instance, if the upcoming Cloture Vote on the Gun Bill fail, this would be a perfect opportunity for Reid to "Bring in the Cots" and show Republican obstructionism "writ-large" over a bill that has well over 80% support with voters.

2. "The Silent Filibuster" - All too often, Reid will seek (and obtain) Unanimous Consent for a bill or amendment to have a 60 vote threshold for passage.  He does this when he knows the Republicans intend to filibuster such a bill/amendment and he doesn't want the Senate's time to be chewed up by long periods of "silent debate" and a string of cloture votes that can go on for days or weeks.  So he gives the Republicans the ability to kill the bill/amendment in a single vote if their caucus decides to vote as a block.  While I can see why Reid opts for this "Silent Filibuster" to help move things along in the Senate, he uses it far too often if you ask me.

For instance, with regard to the Gun Bill again, Reid has pulled the Assault Weapons ban and the Large Capacity Magazine's ban out of the main bill, leaving them to be offered as amendments.  He did this to increase the chances for the main bill to achieve the 60 cloture votes it needs to limit debate and go on to final passage.  But since the Assault and Magazine amendments would also likely get filibustered requiring cloture votes and holding up the main bill anyway, my guess is Reid will seek unanimous consent to use the Silent Filibuster for these amendments requiring a 60 vote threshold for passage.  This will almost certainly doom these worthwhile and, in my mind, essential amendments to quick failure, and that's wrong.  Reid should force the Republicans to engage in a non-silent filibuster of these amendments and hold at least a reasonable number of cloture votes on them to see if the huge public support they have can erode Republican opposition over time.  Instead it is my guess that he will use the 60 vote passage threshold to throw in the towel early in the first round, making it easy for Republicans to kill these amendments swiftly with little political pain being inflicted on them.  That's Just Wrong!

Well thanks to all of you who have gotten to this point without falling asleep.  And also thank you to those few of you who have commented on Parts 1 and/or 2 of this series and in most cases offered praise.  As always, the Doctor is eternally grateful!              

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Comment Preferences

  •  Tip Jar (3+ / 0-)
    Recommended by:
    tardis10, radarlady, hkorens

    "Some men see things as they are and ask, 'Why?' I dream of things that never were and ask, 'Why not?"

    by Doctor Who on Sun Apr 14, 2013 at 04:35:49 PM PDT

  •  Can't the Presiding Officer just not rule on a (0+ / 0-)

    filibuster and call a 51 vote majority passed?  The Presiding officer has the powers of the President and is called as such, no?

    Or can said officer basically force the entire Senate to remain in the chamber until all business is concluded--that is, until all the votes are taken?

    Or is this the job of the Majority Leader?

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Sun Apr 14, 2013 at 04:43:12 PM PDT

    •  So Many Questions (1+ / 0-)
      Recommended by:

      But let me take a stab at them.  First the "Presiding Officer" is the "president of the Senate", who is the Vice President (Biden).  In his absence, which is almost all the time, the duties of the "Presiding Officer" or "Chair" fall to the "President Pro-Temp" of the Senate, who I believe is the Senior most Senator from the Majority (Robert Byrd was President Pro-Temp for a number of years).  However, the actual Day-to-Day Presiding Officer role is delegated by the President Pro-Temp to the least Senior members of the Majority, usually Freshman Senators.  That's why, if you watch C-Span 2 these days, you will often see Elizabeth Warren in the Chair.

      However, when something controversial involving the rules is expected to happen or when there is a possibility that a tie vote might occur, the VP does function as the Presiding Officer.  However, other than breaking a tie vote, his power is limited under the rules.  If a "point of order" (i.e., question) is raised by a Senator on the floor regarding a rule or procedure, it is the Presiding Officers duty to respond.  Often he will seek the opinion of the Senate Parliamentarian who is the Senate's paid expert on rules and procedure.  He can then either respond by issuing a ruling based on the Parliamentarian's opinion, issue his own ruling/opinion, or defer the matter to the body for decision by simple majority vote.  Also, if a Senator does not like the Chair's ruling, he can appeal the ruling and request that the Chair pose the question to the body for a majority vote.  However, that vote turns out is the final say on the matter.

      So, no the Presiding Officer cannot single handedly declare a filibuster ended with 51 votes because he cannot violate the rules, specifically RuleXXII.

      And on the question of forcing members to remain in the chamber, he cannot do that either.  The time of recess (when the Senate will end business for the day) is usually spelled out at the beginning of each session by the Majority Leader in the form of a Unanimous Consent request.  If no Senator objects, that's when the Senate will recess.  If someone did object, it would mean that a filibuster on when to recess has started, although I've never seen that happen.

      Hope that helps?        

      "Some men see things as they are and ask, 'Why?' I dream of things that never were and ask, 'Why not?"

      by Doctor Who on Sun Apr 14, 2013 at 05:54:22 PM PDT

      [ Parent ]

  •  Is This Too Weedy? Kill the Filibuster Rule NOW! (0+ / 0-)

    Let me put it in simpler terms: Kill the filibuster rule NOW!

  •  You're right about the Silent Filibuster burial (2+ / 0-)
    Recommended by:
    radarlady, Doctor Who

    for the automatic weapons and hi-capacity clip measures.

    They need to be brought to a vote - no unanimous consent burying.

    We need to reach Senator Reid on the handling of these.

  •  Thanks for doing these (1+ / 0-)
    Recommended by:

    I have read all three diaries carefully, and appreciate you putting together these cogent explanations of what is often an opaque process. Filibusters were glossed over in my civics classes, so having these diaries to return to for refreshers as the legislative year goes on will be invaluable.

    Thanks again,


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