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When It Comes to Reforming Senate Rules . . .
. . . timing is everything.

By Ramesh Ponnuru


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There are two sets of objections to the filibuster reform that Senate Democrats, especially those who have never served in the minority, are currently promoting. The first deals with the process by which the Democrats are trying to change the process. Stay with me here: By trying to change the Senate rules by a simple-majority vote, the Democrats are either trying to keep the Republican minority from having any say about the rules of the Senate or trying to force Republicans to negotiate by holding a gun to their heads. Democrats may well retort that Republicans threatened to use a majority vote to change the rules on filibustering judges a few years ago — but they should expect no more cooperation from the Republicans than they gave at that time. Any Senate minority leader would try to rally his troops against a simple-majority rules change, and would almost certainly succeed in doing so.

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The second set of objections concerns the proposed rules themselves (Dan Foster listed the elements of one of several proposed reform packages here). These rules would, as is generally understood, weaken the minority. But what people who have not worked in the Senate may not appreciate is that they would not weaken the minority primarily by changing vote thresholds from super-majority to simple-majority. They would weaken the minority by giving the majority greater control over the Senate calendar.

The minority party in the Senate, by extending debate on some issues, can force the majority to set priorities. The infamous bill to create a government for “native” Hawaiians wasn’t blocked because it lacked a supermajority; it died because Democrats were not willing to devote time to going through an extended debate over it. Note that this type of leverage depends on the minority’s influence over the calendar in general, not just over the scheduling of one bill. So if time for debate on nominations is cut down, as in the proposals, one effect will be to enable the Senate majority to confirm a lot of additional nominees. But another effect will be to enable it to get a lot of other bills through by adding to the majority’s available time.

The proposal to end filibusters on motions to proceed would reduce the minority’s leverage in a different way. The argument for getting rid of this filibuster is that the minority now gets the chance to filibuster twice: once before the Senate takes up a bill for consideration on the floor, and once when the majority wants to move to a vote. But the first-stage filibuster gives the minority leverage to force the majority to let it offer amendments. Without a filibuster on a motion to proceed, the minority can still try to filibuster the final bill — but members of the minority will have to make an up-or-down choice rather than having the chance to modify the legislation. Only when Republicans blocked the motion to proceed on the 9/11-responders bill was Senator Coburn able to force constructive changes of it.

The proposed rules attempt to meet this concern by guaranteeing the minority the right to offer three germane amendments to any bill. But there is less to this concession than meets the eye. Under current rules, amendments have to be germane only in the next-to-last stages of Senate debate. Before that, amendments don’t have to meet any standard of tight relevance to an underlying bill. Thus Republicans, though in the minority, defeated a bill to give the District of Columbia voting representation in the U.S. House by attaching to it an amendment giving D.C. residents gun rights as well — at which point the Democrats pulled the plug on the bill. The proposed rules would in practice mean that such amendments would be out of bounds at all times. (The minority is guaranteed only germane amendments, and without the chance to filibuster motions to proceed no longer has much leverage to insist on anything else.)

Note, meanwhile, that the majority would face no such constraint of germaneness. Senate Democrats passed a hate-crimes law by tacking it on to a defense bill.

A reasonable case can be made that the majority should have more power to speed its agenda to passage, albeit one that progressives will find more naturally congenial than conservatives. And some of the proposed rules, such as the end to “secret holds” (which are often not all that secret in practice), seem harmless. But don’t underestimate how much power these proposed rules, taken together, would give to the majority. As the Senate’s president might say, it’s a big deal.

— Ramesh Ponnuru is a senior editor of National Review.

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COMMENTS   5

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   01/06/11 22:28

All those who thought using a majority vote to enact the "nuclear option" was such a super swell idea...how do you like the Democrats doing the same thing?

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   01/07/11 15:43

Fr Fox,

If the point is that Republicans should behave in an honorable manner, then I agree. If the point is that Republicans must behave themselves or Democrats will go crazy in response, then I disagree.

The constant flip-flopping by the left regarding the filibuster, the 'sanctity' of the Senate process and their abuse of procedure to force through legislation in the 111th Congress should be evidence enough that the Democrats would pursue this approach no matter what the Republicans did.

Also, the Republican 'nuclear option' was different. The Republican nuclear option was restricted to judicial nominations. The Democrat process under consideration now affects everything in the Senate except specific Constitutional duties such as Treaties, Removal of Impeached officers, etc.

Best Regards !

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   01/08/11 01:00

Vorpal:

My point is the GOP opened the door; it proposed attempting to change the rules by majority vote, instead of by 2/3rds majority as the rules themselves call for. Actually, the GOP's "nuclear option" gambit was worse, because they proposed having it be a parliamentary ruling adopted by 51 votes.

Further, you repeat the notion that what the GOP wanted to do was limited; those of us who were against it said, but it won't stay limited. Behold: it is not staying limited. The Dems called the Republicans and raised them.

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tom lowe
   01/09/11 07:34

From a strategic standpoint, the republicans should at least think about voting for the rules changes. Here are the reasons:
1. They have a bulwark against bad legislation in the house.
2 There are not enough senate votes against bad nominees and ratifications etc. anyway.
3 Election 2012, Dems face an uphill battle to retain the senate because of redistricting, high ratio of dems to reps up for reelection, unpopular dem policies etc.
4It would be great fun to see the dems whining that the reps pulled a fast one on them by voting for the rules changes
There are of course reasons against as well.

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