Senate Rules Reform: No Fire and Brimstone, Much Logic and Reason

As expected, Senator Tom Udall explained that a simple majority can stop obstruction and force an up-or-down vote on any proposal to reform the Senate’s rules on the first legislative day of the session.

January 7, 2011

There were some dramatic predictions for what would happen when proposals to reform the Senate’s archaic and wildly-abused procedural rules were introduced on the first day of the 112th Congress.  FoxNews predicted a nuclear reaction; others had violent visions of the filibuster’s total demise.  Some argued that, if any rules change occurred, the Senate would turn into the House before our very eyes.

 Now the big day has come and gone, not ablaze with fire and brimstone, but awash with logic and reason.  Here’s what happened. 

As expected, Senator Tom Udall explained that a simple majority can stop obstruction and force an up-or-down vote on any proposal to reform the Senate’s rules on the first legislative day of the session.  This “constitutional option” for rules change is of great practical significance: After the Senate has acquiesced to its standing rules (which automatically carry from session to session unless changed), it is bound by the Rule XXII now on the books, which requires two-thirds of the Senate – 67 senators – to agree before proceeding to vote on any rules change motion.  (To put that high hurdle in perspective, the Constitution requires a two-thirds vote to override a presidential veto!)  While the Senate’s power to force a majority vote on a rules change proposal at the start of a new session is supported by solid constitutional law and senate tradition, and has been repeatedly endorsed by leaders of both parties over the years, some still try to paint this move as illegitimate.  The formal introduction of Senator’s Udall proposal did not, however, inspire fistfights or shouting – instead, most seemingly agree with Senate Udall’s reading of the Constitution and Senate history.

Then, Senate Majority Leader Harry Reid made an announcement that put an unusual, but not unprecedented, twist on this scenario.   The Senate, after its first day on January 5th, will recess until January 24th, thereby preserving the constitutional option.  While some predicted that this news too would inspire outrage, it was also accepted without controversy.

Next, proposed reforms were introduced and discussed in a number of thoughtful speeches.  The most notable package is co-sponsored by 23 senators.  This package is carefully geared to address the worse abuses of Senate procedural while encouraging actual debate and deliberation – all without “killing” the filibuster.  And, despite the über -partisan spin often put on this debate, several of the reform package’s provisions have bipartisan support.    

To start, the package would prohibit filibusters on motions to proceed, meaning that senators could no longer use the filibuster to prevent debate on the merits of legislation or a nominee.  It would also outlaw so-called secret holds, the indefensible practice of anonymously preventing a bill or nominee to move forward for consideration.  (Why this has ever been permitted is beyond me….)  Both of these no-brainer reforms are supported by members of both parties.   

Next, one provision would expedite the process for considering nominees by limiting additional debate on any nominee who has already passed the 60-vote threshold needed to break a filibuster.  This is sorely needed:  As of November 2010, President Obama had 151 vacancies in high-ranking executive posts due to a nominations back-log.  And, Supreme Court Chief Justice John Roberts, decrying the numerous “judicial vacancies in critically overworked districts,” just publicly admonished the Senate to stop playing partisan games and find “a long-term solution to this recurring problem.”  The nominations problem is one that we cannot continue to ignore.  

The reform package also includes a provision to protect the minority’s right to offer amendments on legislation.  Specifically, it would guarantee members of the minority party the chance to offer three germane amendments after a filibuster on that matter has come to an end.  This allowance is geared to address the minority’s party’s biggest complaint, that the majority has repeatedly abused its power by preventing them from offering any amendments. 

Finally, and perhaps most notably, the package would bring back talking filibusters – a vital reform.  By insisting that objecting senators actually take the floor and continue to debate any filibustered matter, this reform would restore the filibuster to its original useful purpose – a means for a determined minority to delay final consideration of a bill or nominee when they are particularly passionate about the outcome.  If senators are forced to take a public stand in order to maintain a filibuster, the filibuster will no longer be abused to block uncontroversial measures.  And, talking filibusters would restore accountability to the Senate.  Obstructionists would have to explain their reasons for blocking legislation or nominations that have majority support – and let the American people approve or disapprove of their decision.

In sum, these reforms would curb unprincipled obstruction while facilitating deliberation and decision-making.  The filibuster would survive, and the Senate would be better-positioned to address the myriad problems of 21st Century America.  While some may still be crying “wolf,” the grown-ups in the room should continue to discuss the serious issue of Senate procedural abuse in muted tones – and realize that the time to adopt reasonable, logical reform is now.