CONGRESS: How To Limit Senate Obstruction

Due to Republican intransigence, Senate Majority Leader Harry Reid (D-NV) has officially given up hope of passing legislation responding to the BP oil disaster and the looming threat of climate change. Of course, this is merely the latest example of the 111th Senate’s inaction; the chamber has been gridlocked by unprecedented obstruction from the minority bloc of 41 Republican senators. Signature pieces of legislation that the body has been able to pass, such as the stimulus, health care reform, and financial regulatory reform, have been delayed and watered-down because of the Republicans’ manipulation of arcane Senate procedure. The GOP’s super-minority is empowered by procedural relics such as the filibuster, and while they are currently succeeding in miring the upper house in dysfunction, momentum is building to reform the Senate’s rules and prevent routine obstruction from continually halting progress. Today’s Progress Report reviews the current tactics of obstruction practiced by the minority in the Senate. Tomorrow’s Progress Report will address Republicans’ application of the filibuster and holds to engage in serial obstruction of Obama’s judicial nominees.

ARCANE PROCEDURE: The Constitution’s framers never meant to design a system that would enable the GOP’s modern level of obstruction. In Federalist #58, James Madison explained why he opposed routine super-majority requirements: “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed.” As congressional scholar Sarah Binder explained in testimony before the Senate Rules Committee in April, “the filibuster was created by mistake” in 1806. In the course of “procedural housekeeping,” a new policy ended up preventing senators from cutting off debate. As Binder explains, it took years “before anyone figure[d] out that the filibuster ha[d] just been created,” after which members launched the “filibuster” tradition of talking on the Senate floor for as long as possible to derail votes. In 1917, the Senate began formalizing the filibuster process through Rule XXII, which let two-thirds of members vote for “cloture,” end debate, and vote on a bill. A rules change at the beginning of the Senate’s session in 1975 lowered the threshold for ending a filibuster from two-thirds to the modern-day three-fifths super-majority. However, the new policy also made filibusters much easier to execute: “to maintain a filibuster, senators no longer had to keep talking…they just say they will, and that’s enough.” Moreover, under today’s filibuster rules, even once a 60-member super-majority wins a cloture vote, the minority can force the chamber to wait another 30 hours before the bill can actually be passed. When Republicans became the minority party in the Senate after 2006, they sharply increased the number of filibusters waged. Meanwhile, because of informal senatorial arrangements known as “holds,” “a courtesy extended to senators in the days of horse travel,” any one senator can block or delay a measure from coming to the floor for a vote. Judging by the Constitution and the Federalist Papers, though, the founding fathers wanted simple majorities to prevail in the Senate. One of the vice president’s constitutional duties is to break ties in the Senate, but if a bill with just half of members’ support could never be voted on, that power is rendered meaningless.

‘MINDLESS’ OBSTRUCTION: Since Obama took office, Senate Republicans have committed to using any arcane procedure to delay the progressive agenda. Senate Minority Leader Mitch McConnell (R-KY) uses “his extensive knowledge of Senate procedure to slow things down…and deny Democrats any Republican support on big legislation.” Vice President Joe Biden said in June, “I know at least 7 [GOP] senators, who I will not name,” who were threatened with “losing their chairmanships, if they did not support the leadership on every procedural vote.” Even though climate change legislation “seems to have been supported by a majority of legislators in both houses,” it recently failed because it couldn’t attract a Senate super-majority. Sen. Evan Bayh (D-IN), who is retiring from the Senate in a state of frustration, argues that while filibusters were once “reserved for things of truly large import, they are now “used to just stop the place from moving.” The 30-hour requirement between filibuster votes and final passage means “it takes about three days to break a filibuster, and a single bill can face multiple filibusters, and so you can waste a week on a small bill that passes by 70 votes.” When an unemployment benefits extension finally cleared the 60-votes in July, Reid blasted Republicans for insisting on the 30-hour delay: “I just can’t articulate in strong enough feelings how unfair this is to 2.5 million people” waiting for their benefits. In an interview with The Progress Report, Sen. Al Franken (D-MN) blamed Senate Republicans for politicized obstruction of a jobs bill. “This whole approach of slowing everything down…they don’t want a jobs bill because they don’t want people to get jobs before the election,” he told us. “The obstructionism has become mindless,” says Sen. Carl Levin (D-MI). In February, Sen. Richard Shelby (R-AL) used a hold to block all 70 pending executive nominations, “a far more aggressive use of the power than is normal,” because he wanted to help send more defense spending to his home state. In a clear effort to stall a vote on a nuclear arms treaty until after the recess, Senate Republicans submitted over 700 questions on it to the White House and demanded answers before they would let the treaty proceed. Sen. John McCain (R-AZ) recently placed a hold on Gen. James Clapper’s nomination to be Director of National Intelligence, even though delaying confirmation past the recess would leave the critical position vacant. When Obama recently announced 15 recess appointments, he “faced an unprecedented level of obstruction in the Senate” on his nominees, having dramatically more still pending than former President Bush had at the same point in his presidency.

MOMENTUM FOR REFORM: Scott Lilly, a senior fellow at the Center for American Progress, wrote a report in March calling for procedure reform because of the “systemic failure” of the Senate’s modern operation. Fortunately, support for reform is building. At Netroots Nation in July, Reid “expressed his support for filibuster reform.” Sen. Tom Udall (D-NM) has a proposal deemed “the constitutional option” that would let 50 senators — with a tie-breaking vote from Biden — vote to change the filibuster rules once a new Congress convenes in January. Sen. Jeff Merkley (D-OR) has been another vocal reform proponent, recently releasing a statement describing its intent: “This isn’t about giving one party or the other more power, it’s about getting things done and honoring the will of the American people.” Sen. Michael Bennet (D-CO) has offered a separate bill that would “eliminate anonymous holds, limit holds without bipartisan support to two days, and limit all holds to 30 days.” The measure would also “require 41 senators to vote to uphold the filibuster, reversing the current requirement that 60 senators vote to stop it,” putting “the onus of organizing support on those who are filibustering.” Senior Senate Democrats, including Majority Whip Dick Durbin (D-IL) and Tom Harkin (D-IA), support mending the rules, as does former vice-president and former Senator Walter Mondale. The American public supports letting a simple majority pass bills in the Senate by 50 percent to 44 percent.