The much-anticipated opening of the 112th Senate has come and gone, and with it came the much-anticipated introduction of Senate rules reform proposals. Yes, proposals in the plural. There were more than one introduced yesterday -- including Sen. Harkin's original proposal that gradually ratchets down the threshold needed for cloture to a simple majority -- and very possibly more to come in the future.
The one most eyes were on yesterday was that introduced by Sen. Tom Udall (D-NM), along with nine cosponsors. I list Senators Harkin and Merkley among them in the title because they've been the ones observers have been following most closely in expectation of a concrete proposal. But among the other seven cosponsors are many who've been actively involved in the behind-the-scenes work of generating the internal momentum for reform: Senators Durbin, Klobuchar, Brown of Ohio, Begich, Blumenthal, Gillibrand and Shaheen. And as I said, I expect that there will be other proposals introduced as well, possibly from Senators Schumer, Bennet, Mark Udall, McCaskill, Wyden, and perhaps even more that I haven't named.
Senator Schumer, in his capacity as Chairman of the Rules and Administration Committee (and who lent the whole movement for reform considerable early legitimacy by convening an extraordinary series of six hearings on the subject from April through September of last year) may even be working on a separate track toward an alternative approach. Whether that takes the form of a proposal aggregating parts of the proposals already mentioned, or something different remains to be seen.
But it's the Udall/Harkin/Merkley proposal that's been the one most anticipated, largely because it's been these three who were out earliest and most vocally regarding their intentions to launch a reform debate in January 2011 -- on the first day of the 112th Congress.
What's in the proposal?
Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed
Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.
Eliminates Secret Holds
Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.
Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority
Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.
This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution – it guarantees the minority the right to offer germane
Talking Filibuster: Ensures Real Debate
Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.
Expedite Nominations: Reduce Post-Cloture Time
Provides for two hours of post-cloture debate time for nominees.
Post cloture time is meant for debating and voting on amendments -- something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.
Most of what's contained in the current proposal was in the Merkley proposal we saw not long ago. And for the most part, my reactions to them are the same.
Eliminating the filibuster on the motion to proceed is a good idea, and the only effective path in my opinion to the elimination of secret holds, despite the fact that that is ostensibly addressed elsewhere in the proposal and by other means.
Ending the "secret" part of secret holds is also a decent idea, although it still seems to me that if you say the words, "I object" on the floor, then that hold belongs to you, period. If someone else wants to hold a bill, let them come to the floor and do it. If you have to talk out a filibuster, then you should register objections on your own behalf, too.
Guaranteeing the minority the right to offer amendments is certainly a fair-sounding idea. It presents some problems of its own, to be sure, in that guaranteed amendments might very well take on the nature of the motion to recommit in the House. But it's clearly offered up as an answer to the Republican claim that it's their inability to offer amendments to legislation under current rules that drives them to filibuster so often. I'm not at all convinced that that's the case, but that's the claim, and that's why the guarantee is included in the proposal. You'll probably notice as I have, though, that this offer hasn't been acknowledged at all in any of the criticism from Republicans. In fact, Republicans addressing the prospect of rules reform that I've heard today have announced their opposition to all such efforts, even as they continue to complain about being denied the ability to amend legislation.
On a second look, though, I'd have to ask what, if anything, prevents the minority from offering a complete substitute under this provision? Because the effect of that would be that the minority's bill would be filibuster proof, while the majority's wouldn't. That would appear to be... a problem. Then again, if the guarantee doesn't kick in until after cloture is invoked (which is what the actual proposal language says, and which is different from what the summary language says), then maybe the effect is that the minority might be encouraged to vote for cloture in order to get their amendments, and then it's just a shoot-out in the last stages. That would be... uh... exciting, I guess.
And on third look, maybe this leads to unanimous consent agreement negotiations where there's a deal for cloture, but only if everyone locks in the content of the six amendments ahead of time. But then again, they can do that right now, without this. And they don't.
On the "talking filibuster," it certainly makes sense as a method of requiring some price from Senators who want to obstruct the work of the majority. And as we've said, it's the way most people always thought a filibuster should be conducted, anyway. If the price is high enough, it can discourage the obstructionist strategy of blanket filibusters on nearly all legislation just to waste time by shifting the burden a filibuster places onto the Senators who want to conduct one, rather than putting it on those who'd seek to stop it.
Finally, shortening time for post-cloture debate makes good sense on its face. There's just nothing that can be done in post-cloture time on nominations except waste time. Limiting the waste to two hours will, I suppose, reserve some right for Senators to make any final points they feel are necessary, but doesn't leave enough time to make it worth routinely forcing it to be burned for purposes of obstruction.
UPDATE: The resolution now has a number, S. Res. 10., and a total of 24 cosponsors, including some you might be surprised to see:
Sen Begich, Mark [AK] - 1/5/2011
Sen Blumenthal, Richard [CT] - 1/5/2011
Sen Boxer, Barbara [CA] - 1/5/2011
Sen Brown, Sherrod [OH] - 1/5/2011
Sen Cardin, Benjamin L. [MD] - 1/5/2011
Sen Casey, Robert P., Jr. [PA] - 1/5/2011
Sen Coons, Christopher A. [DE] - 1/5/2011
Sen Durbin, Richard [IL] - 1/5/2011
Sen Franken, Al [MN] - 1/5/2011
Sen Gillibrand, Kirsten E. [NY] - 1/5/2011
Sen Hagan, Kay [NC] - 1/5/2011
Sen Harkin, Tom [IA] - 1/5/2011
Sen Klobuchar, Amy [MN] - 1/5/2011
Sen Lautenberg, Frank R. [NJ] - 1/5/2011
Sen Manchin, Joe, III [WV] - 1/5/2011
Sen Merkley, Jeff [OR] - 1/5/2011
Sen Mikulski, Barbara A. [MD] - 1/5/2011
Sen Rockefeller, John D., IV [WV] - 1/5/2011
Sen Shaheen, Jeanne [NH] - 1/5/2011
Sen Stabenow, Debbie [MI] - 1/5/2011
Sen Tester, Jon [MT] - 1/5/2011
Sen Udall, Mark [CO] - 1/5/2011
Sen Warner, Mark R. [VA] - 1/5/2011
Sen Whitehouse, Sheldon [RI] - 1/5/2011