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So here we are at the beginning of Filibuster Reform.  Thursday was "Day One" of the new Congress, and we remain in Legislative Day One which is important for meaningful reform of the rules which govern the filibuster.  Miss this "Day One" opportunity and its at least two more years of Republican Grid Lock, Guaranteed!

For those who might be following along, this diary is Part 3 of a three part series on Filibuster Reform.  In  Part 1, we covered what the filibuster really is, in terms of the Senate's Rules.  In Part 2, we covered how Senate rules can be established to reform the filibuster through the “Constitutional Option”.   Here in Part 3, I will cover some of the specific rules that are being discussed to reform the filibuster (with my opinion of each), and others I would like to see, as well as where we currently stand in the process.

Even if you're not interested in delving into this diary (and the other two) now, I would urge you to bookmark it (them), since they are full of interesting facts on Senate procedure and the specific new "Filibuster" rules that you might want to be able to access as you sit back with popcorn in hand and watch the whole thing unfold on C-Span 2.  However, if I have managed to peak your interest somewhat, please jump /\ over the orange squiggle with me and we'll get going.

As I said in Parts 1 & 2 of this series, a lot of the information I am providing in these diaries is the result of the fine tutor-ledge I have received from David Waldman (a.k.a Kagro X) by reading his posts and listening to his fabulous morning show.  He is by far the Prim-o authority on Congressional process and we are lucky to have him on this site.

What will actually happen as "Day One" continues is anyone's guess, but we now can be relatively certain that something will happen to reform the Senate rules governing the Filibuster.  So lets look at the possible new rules.

To start with we have have five (5) new rules that are being proposed by Senator Merkley, the Champion of Filibuster Reform, along with Senators Harkin, Klobuchar and Udall.  You can find a good write up describing them here, however I will summarize each below with my opinion of their worth and likelihood of passage.

Rule 1: Limit debate on motions to proceed to two hours.

As we covered in Part 1, a "motion to proceed" is one of the mechanisms by which a bill or nomination is brought to the floor for the Senate to debate, amend and maybe pass.  Under present Senate Rules this "motion" is subject to debate of "undefined limits" (i.e., the filibuster).  So as crazy it might sound to get a bill/nomination on the floor you often have to file a Cloture Petition and pass it with a 3/5s majority to end debate on a motion to begin debate on the bill/nomination.  From a time (delay) perspective, getting a Cloture Petition up for a vote takes approximately three days because of Senate Rule XXII which states: "...and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll...", and then after passage the same rule requires 30 hours of post-cloture debate on the "motion to proceed" before you get to vote on (by a simple majority) starting debate on the bill/nomination (barring a unanimous consent agreement to shorten the 30 hour period).  So altogether you are looking at a minimum of five (5) days to get a bill/nomination to the floor under current Senate Rules.

The new rule being proposed rule would establish a hard limit of two hours to debate a "motion to proceed" before voting by a simple majority to bring the bill/nomination to the floor.  Thereby, removing the ability to filibuster such motions.  This same limit would also be placed on motions to go to Conference with the House and on adoption of a Conference Report.

My 2 Cents:  There is no doubt that this new rule represents a positive and important change.  Reducing the time it takes to get a bill/nomination to the floor from 5 days (or more) to 2 hours, will obviously make it considerably easier for the majority to get its bills/nominations to the floor and lessen the overall dilatory ability of the minority.

2. Require the disclosure of the name of the senator who objects to a unanimous consent request.

This is all about the practice of "Secret Holds" on bills or nominations.  This is how it works.  A Senator that does not want a bill or nomination to come to the floor, but would rather not be identified, asks one of his fellow Senators (often the Minority Leader) to "Object" on his or her behalf.  The Minority Leader will then tell the Majority Leader that if he asks for Unanimous Consent to bring the bill or nomination to the floor, he or another Senator will object on the behalf of the Secret Senator, which will begin a filibuster.  This filibuster threat will often be enough to prevent the bill or nomination from being brought to the floor since the Majority Leader will judge that the Senate does not have the time to try to break the filibuster on a bill or nomination that is not as important as current pressing business.  Hence, it is said the bill or nomination is under a "Secret Hold".

The proposed new rule would end such Secret Holds by requiring any Senator objecting to a Unanimous Consent request to identify him or herself.  The idea being that if Senators have to publicly state their objections, they will be less inclined to voice such objections, and hence less objections.

My 2 Cents:  I frankly don't see much value in this new rule.  Even if a Senator (Secret or not) were to indicate that they will object to a Unanimous Consent request to bring the bill or nomination to the floor, the bill/nomination could still be brought to the floor by a "Motion to Proceed" which per the new rule described under (1) above, would be limited to two hours of debate followed by a majority vote.  Granted it is faster and easier to get a bill/nomination to the floor via a Unanimous Consent request, I think rule "1" above will pretty much eliminate the practice of placing "holds", secret or public.

3. Guarantee majority and minority leadership amendments at the end of post-­cloture debate.

Senate Rule XXII places restrictions on amendments to a bill during the post-cloture debate period, and requires amendments to the bill (first degree amendments) to be filed with the clerk on the day after a cloture petition filing, and any amendments to those amendments (second degree amendments) to be filed one hour before the cloture vote.  The rule also does not allow dilatory and none germane amendments.  As a result, there are a limited types of amendments that can be offered and the Senate Parliamentarian maintains a proverbial "tree" with slots for each amendment type.  Once all the slots are full, the amendment tree is said to be full, and no further post-cloture amendments are allowed.  Now per Senate precedent, the Senate Majority leader has floor recognition privilege above all other Senators (i.e., if the Majority Leader wishes to speak, the Chair will allow him/her to speak first before any other Senator).  As a result, the Majority Leader can file enough post-cloture amendments to "fill-the-tree" and thereby prevent any other Senator from filing amendments for debate during the post-cloture period, including those Senators in the minority.  Hence the term "filling the amendment tree".

The proposed new rule will allow for three (3) "leadership amendments" to be filed for the post-cloture period, all of which must be germane to the bill and must be filed before the cloture vote with the other post-cloture amendments.  This will allow the Minority Leader to offer a limited number of post-cloture amendments.  It should be noted that this new rule was not in Merkley's resolution on Thursday, but he has indicated that he might use it as a bargaining chip as I explain below.

My 2 Cents:  If your scratching your head as to why Merkley and others might propose a rule that clearly helps the Minority and does nothing for our side, you're probably not alone.  The Minority has often complained about the ability of the Majority to "fill-the-tree" and prevent them from offering any post-cloture amendments.  They have used this as their reason (or as an excuse if you prefer) for filibustering so many bills, inferring that if they could put forth their amendments, they would filibuster less (if you believe that).  Anyway, this new rule is designed to "throw the dog a bone" as you might say.  It responds to their complaint and takes away one of their reasons (excuses) for filibustering so much legislation.  Will it work?  Probably not!  But this new rule can be used as a bargaining chip if need be.  It also can help some Dem. Senators who are leery of reducing minority rights feel a little more comfortable in voting for the whole package.

4. Limit post-cloture debate on nominations to two hours.  

Current Rule XXII limits post-cloture debate for both bills and nominations to 30 hours.  This new rule would simply lower this limit to two hours for all nominations.  Since there are hundreds of judicial and executive nominations which come before the Senate each term, and almost as many filibusters these days, you can see how 30 hours of debate on each of these hundreds of nominations is extremely dilatory.  It results in prioritizing pending nominations and preventing many of the lower priority nominations from ever getting approved.

My 2 Cents: This new rule should help increase the number of Presidential nominations that get through the Senate, for those that get passed cloture.  So that's a good thing.  There are a couple of correctable problems with this new rule though.  First, the two hour post-cloture limit applies to ALL nominations including Supreme Court nominations.  The idea of having 2 hours instead of 30 hours of post-cloture debate on a Supreme Court nomination might be a problem for some Senators on our side in voting for the package of new rules.  So we might need to make some exceptions to the new two hour limit.  The other, mainly technical, problem is that it conflicts with another part of Rule XXII which guarantees every Senator the right to speak for up to ten minutes during the post-cloture debate period.  This obviously does not work if the entire post-cloture debate period is only two hours.  So either the 10 minute rule has to be a 1 minute rule for nominations, or done away with entirely for nominations.

5. Obligate the presiding officer to close debate if no senator seeks recognition after a cloture motion fails.

Yes, we finally have arrived at the BIGGY, the "Talking Filibuster", the one everyone is "talking" about (pardon the pun).  Since Merkley does a great job explaining his new rule in Memo to Senate Colleagues, I've presented a quote below to explain the rule:

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.

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).

Under the present rule, if during a debate a Senator in the minority asks for a "quorum call" under Rule VI, and it is determined by the Chair that a quorum (of 51 Senators) is not present, the minority can make a motion to adjourn (which supersedes all other motions) and as such end the debate for that day.  So if the majority wants to run a "Mr. Smith Goes To Washington" marathon debate, they must insure that 51 of their Senators are present at all times during such a debate to maintain a quorum so as to prevent the minority from being able to adjourn the Senate and end the marathon debate.  On the other hand, the minority only needs to have one Senator on the floor to ask for a quorum call during such a debate, and ironically they must insure that the other Senators in the minority are not on (or near) the floor during the quorum call, in order to facilitate an adjournment.  Since under the present rules, marathon debates place a significant burden on the majority to sustain them, and virtually no burden on the minority, is why you don't see such debates.  That's why what we are left with is the "Silent Filibuster" where bills are blocked by extended debate, but where no real debating actually occurs.

The proposed new rule would require the minority to have at least one of its Senators on the floor at all times during an actual extended debate to seek recognition from the Chair to speak.  If at any time the minority does not have a Senator speaking or requesting to speak, the majority can ask for a cloture vote to limit debate that will only need a simple majority to pass (51 instead of 60 Senators).  It is important to note that the scheduling of when such debates will occur would remain in the control of the Majority Leader.  This allows for getting other Senate business done so it is not held up by a filibuster debate, as is the current practice.    

My 2 Cents: Of all the new rules proposed by Merkley and others this is the most important and the most controversial.  Its supporters (of which I am one of course) argue that this rule is essential if we have any hope of limiting the use of the filibuster.  It helps shift the burden for sustaining a filibuster onto the minority who wants extended debate.  This shift is intended to deter Senators in the minority from filibustering everything in sight, as seems to be the current practice.  While it is likely that it will reduce the number of filibusters, it is unlikely to prevent the filibustering of important pieces of legislation that the minority opposes.

It should be noted that there are a few Dems. who either oppose this new rule, or are on the fence about it.  They are concerned that if some day, the Dems. are in the minority, this rule will make it difficult to block legislation proposed by the Republican radical right.  The problem I have with this argument is the assumption it makes that the Republicans, should they someday achieve a majority, will simply proceed under this rule.  The more likely assumption is regardless of whether this rule is passed now or not, if the radical Republicans take control of the Senate they will pass new rules that will either eliminate the filibuster or place far more restrictions on its use than simply requiring a minority Senator to talk.

There are a couple technical problems I do see with this new rule, as currently written.  

One is, I don't see anything in it that would prevent the minority from ending a day's debate session by adjourning the Senate through a quorum call as we discussed above.  As a result, if a majority wants to keep a marathon debate session going to pressure the minority, the majority must still have at least 51 of its Senators on (or near) the floor at all times during a debate session to avoid adjournment due to the absence of a quorum, while the minority only needs to keep one Senator speaking on the floor at all times.  If this is not corrected, then I would argue that the minority is still getting off pretty easily under this new rule, since the majority is still under a greater burden to keep a marathon debate session going in order to force the minority into hours of continued speaking in order to avoid a simple majority cloture vote.    

The second is the new rule doesn't indicate how long the Presiding Officer gets to decide that no Senator is seeking floor recognition to speak.  As a result, it is apparently up to the person sitting in the Chair.  Some may give the minority a few minutes to bring one of their Senators to the floor and others may declare the absence of Senators seeking recognition immediately after the previously speaking Senator relinquishes the floor.  In fact I'm afraid that the latter would become the norm over time especially if the Republicans are in the majority.  Therefore, it might be prudent to specifically state in the rule that the Presiding Officer must wait a minute or two before declaring that no Senator is seeking recognition to speak.

Well, that's the end of Merkley's list of new rules, now on to some others that are being batted around, including a "not-to-serious" rule of my own that I would like to see.

Require a 2/5s + 1 vote to sustain debate.

Rule XXII, the "Cloture Rule", presently requires 3/5s of Senators duly sworn to limit debate.  With this new rule it would take 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 (2 hours for nominations per new Rule 4 above).  This would shift the burden from the majority who presently need to get a 3/5s majority vote to limit debate, and place the burden on to the minority who would need  2/5s + 1 vote to avoid having debate limited.

My 2 Cents: Of all the new rules I've heard of so far, this ones my favorite.  It would require that the minority stick together to maintain a filibuster.  If just a handful of Senators on the minority side can be picked off or simply get tired having to debate something they may not be enthusiastic about, debate would be limited.  The majority would not have to muster a single vote so they would be free of the burden of having to beg for 60 votes.  The reason I like this rule so much is that if you are going to filibuster a bill, it should be your burden to sustain it, not the majority's burden to end it.

The "Red Challenge Flag" Rule.

So now lets get to my silly rule.  If your goal is to limit the use of the filibuster, why not just simply place limits on its use.  Many of you know about the use of red challenges flags in football where each team's coach gets a limited number of flags each game to challenge calls on the field.  The same concept could be applied to the filibuster.  At the beginning of each Congressional session, both the majority and minority are given a limited number of "Filibuster Flags" to use as they see fit.  Once you use all your flags, your done until the next session.  You can bet that with a limited number of filibusters, the minority would be very careful where they use them.

That's the end of the Rules' List, now onto where we currently stand.  So:

Where Do We Currently Stand?

Well on Thursday the 113th Senate convened beginning the critical "Day One."  Critical in that "Day One" is the only legislative day where the "Constitutional Option" can be used to adopt new rules, as thoroughly discussed in Part 2 of this series.  After the swearing in of the new Senators, Senator Merkley introduced Senate Resolutions 4 & 6.  Resolution 4 entails new rules 1 - 5, but not 4, which we discussed above.  Resolution 6 is a resolution Merkley put forth for Senator Lautenberg which simply entails just new rule 5 above (i.e., just the "talking filibuster").  He then asked "unanimous consent" for their immediate consideration.  Senator Lamar Alexander then objected to Merkley's unanimous consent request.  His objection was based on a "Senate Rule" from the previous Congress that says that resolutions cannot be considered on the same day they are introduced.  The resolution must be held over to the next day, under the previous Senate Rules.  There is some debate that since Merkley did not further pursue his resolutions today, did he acquiesce to the rules of the previous Senate, thereby passively allowing those rules to be adopted as we also discussed in Part 2 of this series.  I frankly think its a stretch to say he acquiesced to the old rules just by doing nothing.

Anyway, then Majority Leader Reid got up and made this statement:

“The Senate is simply not working as it should. That is why, in the last Congress, I made plain that Democrats would do something to fix these issues. The beginning of a new Congress is customarily a time that the Senate addresses changes to its rules. In the last Congress, Democratic Senators Jeff Merkley, Tom Udall, Tom Harkin and Sheldon Whitehouse made the majority's case for change. I commend these passionate leaders. They have made compelling arguments for reform. [...]

But I believe this matter warrants additional debate during the 113th Congress. And Senators deserve additional notice before voting to change Senate rules. So today I will follow the precedents set in 2005 and again in 2011. We will reserve the right of all Senators to propose changes to the Senate rules. And we will explicitly not acquiesce in the carrying over of all the rules from the last Congress.  It is my intention that the Senate will recess today, rather than adjourn, to continue the same legislative day, and allow this important rules discussion to continue later this month. I am confident the Republican leader and I can come to an agreement that allows the Senate to work more efficiently.”

There are two important, if not vital, points made in the bolded part of Reid's statement.  The first point is that he emphatically states that the majority does not acquiesce to the carrying over of the rules from the previous Congress.  This is important since it establishes that there is no agreement on the rules for the 113th Congress and that as for the time being, the Senate will operate under general parliamentary rules.  The second point is that he called for the Senate to go into "recess", and not adjourn.  This is important because from a legislative perspective, when they reconvene they will be in the same legislative day.  They will still be in "Day One" which leaves open the window to use the "Constitutional Option" as explained in Part 2.

Where this goes from here is anybody's guess.

If you're a Pessimist, you might worry about this process dragging out and how that might hurt the prospects of real filibuster reform as it has in the past.  The fact that we are facing another fiscal crisis could put real pressure on those seeking rules reform.  Absent a unanimous consent agreement to use a two track system to allow the senate to move on to other pressing business while addressing the rules resolutions as if still in "Day One" to preserve the Constitutional Option, which is highly unlikely at this point, there will be great pressure for the reformers to accept some watered-down compromise that they, we and all Senate Dems. will soon regret.

If you're a Optimist, you can take comfort in the fact that Merkley continues to claim that he has the 51 votes he needs under the Constitutional Option to put his new rules in place.  Since it is unlikely that he is bluffing, this puts great pressure on the opposition to accept something very close to the rules Merkley has proposed since if they don't, they risk having the proposed rules shoved down their throats by the majority.

While this is the third of a 3 part series, I will likely post new diaries as events unfold.  Ta Da for now!

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Comment Preferences

  •  Tip Jar (2+ / 0-)
    Recommended by:
    schuylkill, chuck utzman

    "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 Fri Jan 04, 2013 at 07:03:38 PM PST

  •  Well done sir. And big props to David Waldman. (0+ / 0-)

    I've become a big fan of his radio program. Now we need to keep up the pressure on our Senators.

    Warren is neither a Clintonesque triangulator nor an Obamaesque conciliator. She is a throwback to a more combative progressive tradition, and her candidacy is a test of whether that approach can still appeal to voters.-J. Toobin "New Yorker"

    by chuck utzman on Sat Jan 05, 2013 at 07:25:35 PM PST

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