As I mentioned earlier, tonight Senate Majority Leader Harry Reid (D., Nev.) threw what might be described as a procedural temper tantrum. The Senate was prepared to vote on final passage of a China currency bill that was certain to pass, as cloture had already been invoked by a 62-38 vote.
Under Senate rules, the minority party is allowed to offer amendments to a piece of legislation following cloture, provided that the amendments are relevant, or “germane,” to the legislation under consideration. Senate Minority Leader Mitch McConnell (R., Ky.) had been attempting all week to force a vote on President Obama’s job bill. After all, the president had repeatedly chastised Congress for failing to take it up. However, Reid didn’t have unanimous Democratic support for the jobs bill as is, and so was seeking to avoid such an embarrassing vote. He had already blocked attempt to bring the bill to a vote earlier this week.
So McConnell’s plan was to offer the president’s bill as a post-cloture amendment to the China currency bill, along with several other Republican amendments. And though it would not be considered a “germane” amendment, the Senate could waive this requirement under a “motion to suspend the rules,” which requires a two-thirds majority for approval. This motion would be the vehicle McConnell would use to force Democrats to vote on the president’s plan, which they don’t all support, at least not in its current form. The motion would fail, but the bipartisan opposition to the president’s bill would be noted in the record. Furthermore, Republicans were seeking an amendment that would ban the Environmental Protection Agency regulating farm dust, which I wrote about here. Democrats were understandably embarrassed by the prospect of having to support such senseless regulations.
When McConnell offered his motion on the Senate floor, it was ruled in order by the Senate parliamentarian, as is the custom. But then, in unprecedented fashion, Reid objected. Senators were called to the Senate chamber where they voted along party lines 51-48 to overrule the parliamentarian’s decision, effectively eliminating the minority’s ability to offer amendments under these circumstances. Forever. Or at least until the rule is overturn by another simple majority vote.
“This is an outrage!” Sen. Roger Wicker (R., Miss.) protested as members were casting their votes. When the ruling was formally approved, an impassioned back and forth ensued. “We are fundamentally turning the Senate into the House,” said a visibly irritated McConnell. “The rules of the Senate will be effectively changed to lock out the minority party even more.”
Even Reid seemed aware of the magnitude of his decision. “What just took place here is an effort to expedite what goes on around here,” he said. “Am I 100 percent confident that I’m right? No. But I feel pretty comfortable with what we’ve done.”
Indeed, Reid had opted for the so-called “nuclear option,” to toss history and precedent aside and change the rules of the Senate, all to avoid having to vote on a jobs plan the president has repeatedly called on Congress to pass, and a bill that would eliminate some of the most absurd regulations proposed by the EPA. Instead, Reid intends to hold a vote next week on an amended version of the bill that includes a 5.6 percent “millionaire surtax” to cover the bill’s $450 billion price tag.
The implications of Reid’s play tonight should not be understated. In theory, there is nothing preventing the Senate from using this same tactic to do away with any number of rules, including the 60-vote requirement to break a filibuster. In fact, many liberals have been clamoring for Reid to do just that in order to ram through controversial agenda items like Obamacare or a second, even larger stimulus package. Reid has established a firm precedent that will not soon be forgotten.
Given the increasingly high likelihood that Republicans will regain control of the Senate in 2012, this was an especially risky maneuver for Reid to pull. Both parties tend to accept and abide by the Senate rules, knowing that any election cycle could relegate them to minority status, in which case they want protections like the one Reid just eliminated to remain in place. Senate Republicans are livid, and understandably so. If they do take power in the coming election, and, for example, Obamacare repeal comes before the Senate, things could get pretty interesting.
Thanks Harry Reid. You just eliminated the only way the Dems could block a wholesale repeal of Obamacare, EPA regs, Dodd Frank, etc.
Now that's Hope&Change! that I can really believe in.
Reply to this commentLinkReport AbuseIf Republicans do manage to retake the Senate in 2012, I sincerely hope they remember this day and this precedent and immediately move to reinforce the power of the majority in whatever manner they choose.
As a practical matter, may this also be a reminder to those Republicans who think that constant escalation, such as holding the full faith and credit of the United States hostage in an unprincipled attempt at raw coercion, has no consequences, that they are in fact deeply mistaken.
Even if Republican politicians were angels (which they obviously are not) moving the Senate back to its Constitutional origins as a body ruled by the majority is the right thing to do. If Republican extremism builds the necessary support on the Democratic side to actually accomplish this, so much the better.
Reply to this commentLinkReport Abuse"holding the full faith and credit of the United States hostage in an unprincipled attempt at raw coercion"
Right there was the giveaway about your lack of regard for the truth. The country's credit was never at stake; we never would have intentionally missed a debt payment. We had plenty of money to make the debt payment with the existing revenues.
Now, we might have cut the heck out of a lot of programs or eliminated obnoxious agencies like the EDA and the EPA (to say nothing of Departments of Energy, Education, Labor and other useless black holes into which money disappears). But miss a debt payment? No.
I hope you don't manage your household budget as recklessly as the Congress has for years. Do you borrow more money from Mom and Dad so you can continue spending on vacations, plastic surgery, supporting a lazy brother-in-law, etc., and then blame everyone else for your own overspending? I hope not!
Reply to this commentLinkReport AbuseAs a practical matter, may this also be a reminder to those Republicans who think that constant escalation, such as holding the full faith and credit of the United States hostage in an unprincipled attempt at raw coercion, has no consequences, that they are in fact deeply mistaken.
Nice bluster. Meanwhile, let's check out the political landscape since Obama's been elected:
1. (R)s gained three governor spots in 2009
2. (R)s gained 63 House seats in 2010.
3. (R)s gained six Senate seats in 2010.
4. (R)s gained six governor spots in 2010.
5. (R)s control the entire legislature in 25 states, 11 more than before 2010.
6. (R)s repeatedly beat the (D)s in Wisconsin in 2011.
7. Obamacare has been going down in flames in the courts.
8. Obama's poll numbers have gone down in flames with everyone.
But don't let any of this detract from your little fantasy land.
Reply to this commentLinkReport AbuseWow, David, you really are ignorant.
Originally, there was NO cloture rule in the Senate at all -- any Senator could single-handedly filibuster the entire Senate because it required unanimous consent to end debate, and obviously the filibustering Senator would not consent.
It wasn't until 1917 that any cloture rule was adopted -- and that required 2/3 of those Senators present. The current rule, adopted in 1975, now requires 3/5 of all Senators sworn -- which is an interesting difference. But...the point remains, prior to 1917 there was no official way to shut down a filibuster, other than for the minority to voluntary accede.
The Senate, a majoritarian body? Pull my other one.
Reply to this commentLinkReport Abuse"... moving the Senate back to its Constitutional origins as a body ruled by the majority is the right thing to do."
Your knowledge of history, and of the Constitution, is faulty. The Constitution doesn't provide for unlimited debate, yet that was the most hallowed tradition of the Senate from the 1st Congress until 1917, when Senate Rule XXII permitting cloture was first passed.
Yes, the Constitution generally permits the Senate to behave like the House if it wants to. No, no Senate has ever done so, but that is what Harry Reid is pushing the Senate toward through rash acts like this one.
That's great if you want to destroy the entire tradition of American government in which the Senate is the "saucer that cools the House's hot coffee" and move us closer to parliamentary banana republics with a constant tyranny of the majority. You won't find a single member of the U.S. Senate, though, including Harry Reid, who's willing to go on record agreeing with you that we should do that.
Reply to this commentLinkReport AbusePut another way:
Conservatives, by definition, ought protest anything which makes it easier for bare-majority mob rule to push things through both chambers of Congress. We should maintain the traditional and different functions of the two chambers, in particular the Senate's tradition of debate and thoughtful consideration to moderate the House's rashness. We should oppose efforts to further weaken, or to abolish, the filibuster (except in the limited circumstance where the Constitution implies an affirmative Senate duty to give an up-or-down vote on presidential nominees as part of the Senate's constitutional advice-and-consent function).
Conservatives should maintain those position regardless of whether Republicans are in the majority or not, and regardless of impulses to exact revenge.
Reply to this commentLinkReport AbuseI agree with many of your points, Bill, but would like to make one addition.
The original structure of the Constitution designed the Senate to legislate in a significantly different manner than the House, because the Senators would be beholden to the State Legislatures instead of responding directly to the people. It seems to me that, after the adoption of the 17th amendment, the restrictive rules of the Senate are the only thing preventing it from behaving identically to the House.
Reply to this commentLinkReport AbuseYou sir are somewhat ignorant of history. No one even thought of obstructing in the Senate through the filibuster in the early history of the Senate.
Remember the huge controversies over the admission of new states? No free state could be admitted to the Union unless a slave state was likewise admitted. All to preserve a delicate balance in the Senate. Why would such a balance be considered so momentous if the slave states could have just filibustered anyway?
As Senator Reid has demonstrated, it is within the power of a majority to take back control of the Senate. And it is becoming evident that this is exactly what is likely to happen as the minority fails to recognize any limits in propriety and good sense to engaging in pure obstruction.
Reply to this commentLinkReport AbuseMr. Welker, I don't intend to trade insults with you, but neither do I agree with your version of history.
For those wishing to learn about the history of unlimited debate and filibusters in the U.S. Senate, you can get a rough and dirty start in Wikipedia. For the full story, I highly recommend Robert Caro's Master of the Senate: The Years of Lyndon Johnson, which contains a very detailed prologue about this very subject in order that one can appreciate the filibuster's role in general, and in the civil rights movement in particular.
I repeat: No conservative should support the erosion of the filibuster.
Reply to this commentLinkReport AbuseAnother quick introduction to the history of the filibuster can be found on the Senate's own website:
"Using the filibuster to delay or block legislative action has a long history. The term filibuster -- from a Dutch word meaning 'pirate' -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.
"In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue."
Liberal eggheads who want to destroy the filibuster have their own view of history (e.g., Prof. Sarah Binder, writing for the Brookings Institute), but even they recognize that the Senate Rules permitted filibusters as early as 1806, and that threats of filibusters were used in the 1830s, although the first actual filibuster wasn't until 1837. (I think Prof. Binder's intellectual dishonest about the importance of the tradition of unlimited debate in the Senate, and that she wants to ignore a lot of history in order to achieve a current political goal of European-style bare-majority parliamentary democracy, which is contrary to our American traditions.)
Reply to this commentLinkReport AbuseI really don't think the move was all that risky. It was almost entirely parallel to the 1979 post-cloture-reform rules change, which was promted by a similar type of nuclear option being invoked. A few liberal Senators filed hundreds of amendments, and the Senate was stuck in knots for days dealing with them, until they essentially changed the rules through a ruling of the chair to dispense with the amendments (just like what happened today). In the future, post-cloture debate and amendments were strictly limited by time and subject matter. Post-cloture amendments had to be germane to the bill, and there was an overall cap on 30 hours for consideration of all debate and amendments after cloture was invoked.
The only thing this does is finishes the job that was started in 1979. After 1979, amendments during post-cloture were very limited. The "suspend-the-rules" gambit McConnell took today was a loophole to the germaneness requirement that they apparently overlooked in 1979, and completely violates the intention and spirit of the rules change back then. The entire point of the germaneness requirement is that post-cloture amendments be germane. They did not intend to allow for non-germane amendments through a loophole in the rules. Of course, Republicans weren't really complaining back in 1979, when it was liberal senators being blocked in a very similar situation. They are only complaining now, because it was their amendment that was blocked (rather than that of a liberal Senator).
But your alarmism is probably misplaced. The 1979 incident did not lead to any weakening of a 41-vote minority's ability to block legislation (and the use of this ability has grown exponentially since then). If you define "nuclear option" as precedent-setting by an appeal of the ruling of the chair, the nuclear option has been invoked several times over the years, and it has not led to any of the effects you are predicting.
In particular, there is a bright line between uses of this tactic to speed things along, and uses of this tactic to actually change the threshold of what can pass the Senate. For example, many decades ago, Byrd used the exact same tactic (appeal of a ruling of the chair) to remove the 60-vote requirement to move to executive session to consider an executive nominee. But this did not affect which nominees could pass, since there was still a 60-vote requirement to invoke cloture on the nomination once in executive session. It just sped things along by preventing a redundant second filibuster on the same nominee.
We don't hear about this change today, because it did not affect what could ultimately pass. On the other hand, we frequently hear about the (failed) 2005 nuclear option gambit, because THAT would have substantially affected what could come out of the Senate (by actually lowering the threshold from 60 to 51 for nominees). The reason the former tactic succeeded (with little controversy) and the latter failed (with much controversy) is because the former just sped things along, while the latter would fundamentally change which nominations could pass the Senate and which couldn't.
In particular, this is why Reid did not change any rules that would allow a single line of law or a single nomination to pass the Senate that otherwise would not have. If he wanted to do that, he could have done it when they had 59 Senators and when Democrats had the House. He didn't. In fact, Reid actively worked to block a rebellion of Democrats at the beginning of 2011 who wanted to do just that.
The most this precedent allows the Republicans to do is bat down non-germane post-cloture amendments that the Democrats offer (either through this precedent or by McConnell using a similar tactic to defeat a newly-found Democratic loophole in 2013). But this won't affect Obamacare repeal, since Republicans won't have the votes to invoke cloture on an Obamacare repeal. At most, it will affect bipartisan legislation that is bogged down by some Democrats (by allowing it to move through the post-cloture process faster than it would have otherwise).
Reply to this commentLinkReport AbuseBy voting on party lines to uphold Reid's objection, haven't the Democrats voted against having a vote on Obama's jobs bill anyway?
Reply to this commentLinkReport AbuseSo why is it that the Democrat position is always the "default" -- and correct -- position, and if the Republicans wish something different, it's "escalation" and "hostage"-taking?
Reply to this commentLinkReport Abuse"Given the increasingly high likelihood that Republicans will regain control of the Senate in 2012"
ROFL. Best laugh of the night. Have you been paying any attention to how the Tea Party has been devastated in polls? Have you noticed how Dems have been winning recent elections? Have you even seen how clownish the current Republican candidates have all come across?
Reply to this commentLinkReport AbuseAlso, this " procedural temper tantrum", as you call it, was written into the "hallowed" Constitution. Are you implying the Constitution, the Holy Grail of the Tea Party, is wrong? Is there silly and facetious information in the Constitution? Heaven forbid! The Founding Fathers must have been high!
Reply to this commentLinkReport AbuseThe Constitution has nothing to do with this. This is about Senate Rules, and the traditions of the Senate, all of which are extra-Constitutional.
Before you mock, get a clue.
Reply to this commentLinkReport AbuseIf you think there are no Constitutional limits on the rules that the Senate can pass, YOU are the one that needs to get a clue.
Can the Senate pass a rule depriving a citizen of life, liberty, or property without due process of law? For example, could the Senate pass a rule allowing a majority of Senators on a committee to vote to have a witness testifying during a hearing executed without a trial or any other sort of due process simply because the Senators did not like the witness's testimony?
If you answer no to this question, you have just acknowledged that rules of the Senate are not "extra-Constitutional." Who needs to get a clue now?
Reply to this commentLinkReport AbuseI didn't say any of that, nor is any of it relevant to what happened today.
Straw man much?
Reply to this commentLinkReport AbuseI'm sorry, that was snippy. Let me actually try to educate you.
Article I, Section 5, Paragraph 2 of the Constitution 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."
Thus, the "Senate Rules" at issue here are those passed -- typically without change from the last Senate -- by each new Senate when the new Congress convenes after every national election.
These are purely PROCEDURAL rules. They govern how the Senate is to conduct its own business.
The procedural rules of the Senate do not embrace such things as depriving citizens of life, liberty, or property. They don't purport to deal with constitutional rights of the public in any form, even though the Constitution does authorize the Senate to determine its own rules. Nor do the Senate Rules deal directly with the substance or merits of any legislation or other matters upon which the Senate may vote. They only control procedures.
The Constitution neither prescribes nor proscribes any part of the content of these procedural rules. Thus, for example, the tradition of unlimited debate, and the resulting practice of the filibuster, doesn't appear in the Constitution either directly or indirectly. But that tradition was first abridged and modified by the passage of Senate Rule XXII, permitting the invocation of cloture, by the Senate Democrats who were then in the majority in 1917; and it was further modified by the Senate Democrats who were then in the majority in 1975, when Rule XXII was changed to its present form (changing the cloture requirement from two-thirds of those present and voting to three-fifths of those duly sworn).
The Senate could do away with the filibuster altogether without violating any provision of the Constitution, and on a bare majority vote (except to the extent limited by the version of the Senate Rules re-adopted at the beginning of that Congress). Just because it could be done, however, doesn't mean that it should be done.
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