Nel's New Day

January 17, 2013

What Happened to Filibuster Reform?

Filed under: Uncategorized — trp2011 @ 8:10 PM
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Filibuster reform: discussion of this seems to have faded since the twin crises of the debt ceiling and gun control issues. Yet it’s still swirling around in the blogosphere. Theoretically, any changes in Senate rule have to be done on the first day of the session which was January 3, the only day that rules can be changed through a simple majority. If there is an attempt any other time, the GOP is sure to—ahem—filibuster changes. Senate Majority Leader Harry Reid (D-NV) has extended the first legislative day of the new Congress, however, until Jan. 22. (This website provides extensive information on the filibuster process.)

Sens. Jeff Merkley (D-OR), Tom Udall (D-NM), and Elizabeth Warren (D-MA) have launched a petition to get support for eliminating the silent filibuster. Currently, senators can just say that they are filibustering and then go back home without having to actually standing and speaking on the floor. The proposal is also to eliminate the motion to proceed, typically offered by the majority leader to bring up a bill or other measure for consideration.

Sens. Carl Levin (D-MI) and John McCain (R-AZ) have a scaled-back plan, supported by at least six other senators, that would sunset in two years.  Instead of a rules change, the proposal would ask Senators who want to object to unanimous consent, or threaten to filibuster, to do it in person on the Senate floor. That’s how it’s done now—and the GOP members refuse to follow this “recommendation.” In addition, the proposal states that the Senate shouldn’t go over the 30 hours of post-cloture debate time (as if that’s a major problem), and that the Presiding Officer could always call for a vote if nobody objects. Those are the current rules that have caused massive obstructionism and delay during the past several years.

Even when the talking filibuster was part of Senate rules, the filibustering Senators could use quorum calls and other practices such as dilatory motions or forced roll-call votes to avoid speaking. “Without a talking filibuster, obstructionist Senators will still be able to silently stall any piece of legislation they want without any accountability,” he writes.

Currently, the motion to proceed is eligible for a filibuster. Thus a minority of 41 Senators can force the Senate to extend debate on whether to start a debate on legislation. Udall-Merkley would eliminate this circumstance, so that proceeding to debate could not be filibustered.

On the other hand, Levin-McCain propose that ending the filibuster on the motion to proceed could happen only if the majority permits two amendments from each side of aisle, resulting in poison pill or messaging amendments. The underlying legislation would require 60 votes for final passage, but the amendments would demand only a simple majority vote. Example: the Democrats might have a bill on funding health care, and the GOP could amend it to defund Planned Parenthood. Most likely the result is legislative paralysis like the current situation.

To set up a conference committee, reconciling differences between legislation passed separately by the two houses of Congress, the Senate needs to pass three motions (to insist on its version of the legislation, request a conference with the House, and appoint conferees), all of which can be filibustered. If the minority wishes, they can force the Senate to spend 12 days to get through all three steps.

Udall-Merkley would consolidate the three motions into one and end filibusters against that motion so that a bill already passed by the Senate (and already subject to filibuster) can get to a conference committee with the House. The underlying legislation is still subject to filibuster after it gets back from conference. Although the McCain-Levin would consolidate the three motions into one, it could still be filibustered.

Udall-Merkley reduces post-cloture debate to two hours on all nominations except for Supreme Court Justices, a change from the four days of floor time on every individual nominee. McCain-Levin adds the 531 Presidential-level nominees to a streamlined process by going directly to the Senate calendar instead of through committee review, but every Chair and Ranking Member would have the opportunity to strike these new nominees from the list. That would eliminate most of the nominations. At this time, 75 seats on the federal bench, including Chief Justice John Roberts’ former position on the DC Circuit Court—vacant since he left in 2005.

Reid has a compromise proposal that would require a filibustering minority of senators to occupy the floor and speak after the debate has begun. They would staill retain the ability to force a 60-vote threshold for the first motion to begin debate. After that, the majority could advance legislation, or nominations to the minority could try to block it. Thus at least 51 senators would have to remain in the chamber to maintain a quorum rather than the current rule of keeping just one senator on the floor until the majority caves. Reid said, “If somebody wants to stall things let them stand and stall, not hide back in some office someplace.”

Reid’s plan would also eliminate a rule requiring a 30-hour gap between cloture and a final vote on a measure to make it easier for the Senate to go to conference with the House.

Merkley said, “As of this point, the only person who has said that he will definitely oppose Reid’s package if it is to be done with 51 votes is Senator Levin.”

Senate majority might have approved the Dream Act, campaign finance reform, and equal pay for equal work. None of these bills could come up for a vote, however, because they were all filibustered. When one considers the extent of filibustering during the last Republican minority, it is sure than at least one, and perhaps more, of the president’s nominees for cabinet seats will be filibustered. Although in the past a few cabinet nominees have been voted down in a majority vote, none has ever been filibustered.

A HuffPost/YouGov poll conducted in late November found that 65 percent of Americans believe senators should have to participate in debate for the duration of a filibuster, while only 9 percent of those polled said that senators should be able to filibuster without being physically present. The Senate is ripe for change because of the unprofessional behavior of the GOP Senate minority during the past six years.

Speaking of the GOP, House members are currently safely ensconced at their Williamsburg retreat. Part of today’s agenda was a panel on “Successful Communication with Minorities and Women.” The location is in the gracious Burwell Plantation room, named after the famous Virginia slave plantation, on the remnants of the Kingsmill Plantation.

Since January 1, 2013, at least 496 people have died of gun deaths in the United States, including 20-year-old Caitlin Cornett, her 53-year-old uncle Jackie Cornett, and her 12-year-old cousin Taylor Jade Cornett. The gunman had bought the semiautomatic pistol the same day at a pawn shop.

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