Backing off a threat to use the “nuclear option” to force major reforms in rules governing the filibuster, the Senate voted overwhelmingly on Thursday for a series of more minor rules changes which will limit delaying tactics over the next two years, but not cripple the ability of Senators to block legislation.
The move left many Democrats and more liberal groups frustrated, as they watched plans for more dramatic filibuster reforms fall into the Legislative Ditch.
“A minority does not deserve the right to systematically block action by the majority elected by the American people,” said Sen. Tom Harkin (D-IA), who was not pleased with the final deal on filibuster changes.
“My friend Harry Reid,” said Common Cause President Bob Edgar, “has gone missing in the fight for filibuster reform.”
Reformers had hoped to dramatically alter the filibuster rules to put more of the burden on those who would block legislation, by forcing them to conduct old-time filibusters like that in the movie, “Mr. Smith Goes to Washington.”
They also wanted to change the rules so that instead of requiring 60 votes to shut off debate, opponents would have to muster 41 votes to maintain their efforts to block legislation or a nomination.
But some more senior Democrats balked at the effort, knowing full well that some day they might be back in the minority, which might make a filibuster a more appetizing legislative tactic.
“These steps are modest, and don’t address the core problem of the secret, silent filibuster,” said Sen. Jeff Merkley (D-OR), who led the fight on filibuster changes.
“I’m disappointed that we didn’t take a bolder step to fix the Senate,” Merkley added.
So what exactly will change? Let’s run down the somewhat technical parliamentary adjustments that were easily approved by Senators in a pair of votes on Thursday evening:
Senate Resolution 16 (S. Res. 16) achieves two goals – the first is that it basically streamlines consideration of motions to send bills to a House-Senate conference committee by reducing the possible number of filibusters from three to one.
It used to be that a Senator could filibuster the motion to disagree to a House amendment, a motion to request a conference or agree to a conference with the House, and the motion to appoint conferees for negotiations.
Instead, the rules change allows for two hours of debate to shut off debate on the motion to go to conference – and if cloture is invoked – then the vote on House-Senate negotiations would take place immediately, not after 30 hours of intervening debate.
S. Res. 16 also includes a bipartisan cloture provision that allows 16 Senators to sign a cloture petition – the same number needed now – except that if those 16 are the Majority Leader, Minority Leader and seven Senators from each side, then if cloture is invoked on the motion to proceed to a bill, the Senate would move immediately to vote on that motion without any post-cloture debate.
In plain English, it allows a bipartisan Senate majority to move ahead on legislation without having one or two Senators gumming up the works on the Senate floor for several days.
That was approved on a vote of 86-9, more than the two-thirds needed for a rules change in the Senate.
Also approved on a vote of 78-16 was S. Res. 15, which contains the rest of the filibuster changes that will be tested in the 113th Congress.
The basic thrust of these changes is to eliminate filibusters on the “motion to proceed” to a bill – as up until now, you could use the filibuster to prevent a bill from even being brought up on the Senate floor.
Now, the rules change will allow for a four hour debate on the motion to proceed to consideration of a measure – if that is agreed to by a simple majority – then the majority and minority would be guaranteed at least two amendments each on the bill.
This would both allow debate to move forward and help prevent a Majority Leader from “filling the amendment tree” in order to keep the minority from offering any amendments to a bill.
That same rules resolution also streamlines consideration of more minor Executive Branch nominations and also those of Federal District Court judges.
For example, lower level nominees would be subjected to only 8 hours of post-cloture debate, instead of 30 hours; lower court federal judges could only have two hours of post-cloture debate.
The bottom line here is simple – the Senate did not drastically change the rules on the filibuster, but shortened some of the time needed for the Senate to overcome legislative delay tactics.
“Today’s vote is a victory for bipartisanship and a significant step forward for the Senate,” said Sen. Mark Pryor (D-AR).
It was somewhat understandable that Pryor was involved in efforts to reform the filibuster, since his father, former Sen. David Pryor of Arkansas, also tried to reform the filibuster during his time in the U.S. Senate.
It was 30 years ago, at the end of the 97th Congress in 1982, that Pryor the Elder teamed with Sen. Edward Kennedy (D-MA) to propose filibuster reform, as that Congress ended in a bitter filibuster fight with Sen. Jesse Helms (R-NC) over a 5-cent a gallon increase in the federal gasoline tax.
“Shame, disgust and ridicule have been visited upon this body,” the senior Pryor said at the time, aiming most of his venom at Sen. Helms, who was sometimes referred to as “Senator No” for the fierce nature of his opposition to certain bills.
Helms – who was a master tactician when it came to the Senate’s rules – used a series of delaying tactics during December 1982 that kept the Senate working until almost Christmas Eve, all in a bid to block the nickel gas tax increase from President Ronald Reagan.
Finally, the Helms filibuster was broken on a vote of 81-5, on December 22, as Senators then rushed home for their Christmas break; it wasn’t the only time Helms would tangle with Democrats.
“I followed the rules of the Senate; I always do. And I resent any implication to the contrary,” Helms said in one notable spat on the Senate floor with a Delaware Democrat named Joe Biden in the early 1990’s.
One thing to note is that most of those clamoring for filibuster reform in both 1982 and 2013 had something in common.
They were in the majority party of the U.S. Senate.
Back in 2005, it was Republicans who were talking about using the “nuclear option” to do away with filibusters against judicial nominees.
The Republicans were in the majority party of the U.S. Senate then.
These almost decadal arguments about the filibuster bring me back to one inscription on a statue at the National Archives here in Washington, “What is past is prologue.”
While battling with Democrats once on the Senate floor, Jesse Helms lapsed into a story about how he had been returning to Capitol Hill one day, and noted that saying to his taxi driver.
“Driver, what does that mean?” Helms asked.
Without missing a beat, the response was simple and straightforward.
“That means you ain’t seen nothing yet,” the cabbie told Helms.
The filibuster – or the right of unlimited debate – has been around since 1806 in the Senate. And despite reform efforts that first allowed for a cloture vote in 1917 and have nibbled around the edges ever since, the filibuster isn’t going anywhere – at least not in 2013.
in other words, when it comes to the Senate and the filibuster, “What is past is prologue.”