As already reported in a prior post, the U.S. Senate on January 24th adopted modest reforms to its filibuster rule, and the initial reactions were mixed. Here are some additional reactions.
The Majority and Minority Leaders
The brokers of the actual reforms–Democratic Senator Harry Reid, the Majority Leader, and Republican Senator Mitch McConnell, the Minority Leader–issued statements afterwards.
Senator Reid said the reforms are “steps towards ending gridlock in the Senate, and making this body a more efficient place while still respecting the rights of the minority. Americans of all political stripes can agree that Washington is not working the way it should. We were elected to get things done for the middle class – not waste time with endless stalling tactics that cause even bills with broad bipartisan support to languish for weeks. These reforms will allow us to deal with legislation in a more timely fashion, and weaken the ability of those who seek to obstruct for obstruction’s sake”
Reid added, “If these reforms do not do enough to end the gridlock here in Washington, we will consider doing more in the future.”
McConnell, on the other hand, emphasized that the bipartisan compromise package ” avoided the nuclear option, and . . . [retained the rule] that any changes to the Standing Rules of the Senate still require 67 [two-thirds] votes.” He also expressed home “the Senate can return to the way it used to operate and that all of us will be able to participate more fully in the legislative process.”
Leaders for Stronger Reforms
Senator Jeff Merkley, one of the leaders for stronger reforms, recognized that the Senate as a whole had declared “the paralysis of the Senate is unacceptable.” The adopted reforms, he said, “are modest, and don’t address the core problem of the secret, silent filibuster, but they do include some important elements, providing flexibility on the motion to proceed and speeding up the confirmation process on nominations.”
“If these modest steps do not end the paralysis the Senate currently suffers,” Merkley added,” many Senators are determined to revisit this debate and explore stronger remedies,” and he would keep working to that end. “We have a responsibility to address the big issues facing our country. I’ll keep working with my colleagues to achieve that goal.”
In an interview, Merkley reiterated his commitment to pressing for additional reform if nothing much changes in this session of the Congress.
The other leader for stronger reforms was Senator Tom Udall of New Mexico. He said that although the adopted reforms were “not as strong what many of us have been advocating,” they did alter “the way we deal with nominations, conference committees and motions to proceed — all things I’ve been working toward.” Udall, therefore, was “supporting . . . [the] efforts to get a bipartisan agreement today,” but would “continue to fight for the stronger filibuster reforms my colleagues and I believe will make the Senate a more accountable institution.”
Udall also emphasized that the external infrastructure for Senate reform would continue and remain vigilant and ready to push for more action later if necessary.
Conclusion
I hope that these limited changes will make the Senate more functional.
But I am skeptical.
For example, in this new session of Congress Republicans are delaying a Judiciary Committee hearing on the President’s nomination of a very able lawyer to be a circuit court judge. The purported justification is their demand for information about the Government’s settlement of a case in which he had a minor role.
Another example is the limited changes’ failure to alter the filibuster rule for high-level presidential appointments. This week an appellate court held that President Obama violated the Constitution by making several recess appointments to the National Labor Board, which otherwise were subject to Senate confirmation, when the Senate was not really open for business, but rather in Potemkin Village illusions of sessions. According to the New York Times, this Republican senatorial practice and the court’s decision demonstrate how the Democrats’ “timidity” on reforming the filibuster rule “is being used against them.”
Comment: Washington Post Endorses the Senate’s Reform of Its Filibuster Rule # 379A–1/27/13
An editorial in the Washington Post endorses the Senate’s recent reform of its filibuster rule. It says, “Mr. Reid and Mr. McConnell’s deal is a modest improvement crafted in a cooperative fashion and deserves praise on those grounds, not criticism because Mr. Reid did not risk counter-productive partisan war to do more.” The reform was “a rare example of bipartisan accord, dodged the threat of partisan blowback hobbling the Senate and avoided setting a dangerous precedent for minority rights in his chamber.”
A commentator in that newspaper, however, comes to a different conclusion. Greg Sargent, agrees with the following evaluation by Norman Ornstein, a long-time critic of Congress: ““To avoid disruption right now, they opted for greater efficiency in the operation of the Senate, rather than providing a much higher hurdle for obstructionism. They are going to make it easier to move things, but they are not extracting a price for bad behavior right now.” Indeed, according to Sargent, “Today’s reforms do nothing to discourage, or extract any price whatsoever for, precisely the type of unprecedented and destructive party-wide obstructionism that launched the push for reform in the first place.”
Editorial: Progress in the Senate, Wash. Post (Jan. 26, 2013), http://www.washingtonpost.com/opinions/progress-in-the-senate/2013/01/26/3b658dae-6732-11e2-93e1-475791032daf_print.html; Sargent, No price for unprecedented obstructionism and destructive governance, Wash. Post (Jan. 24, 2013), http://www.washingtonpost.com/blogs/plum-line/wp/2013/01/24/no-price-for-unprecedented-obstructionism-and-destructive-governance/
Duane.
It is highly improbable that Harry Reid ever seriously entertained the idea of significant reforms to the filibuster rules in the Senate. There are any number of likely reasons.
First, the GOP controls the House. So, any major, substantive legislation of significant federal policy concern put forward by The White House or initiated by Senate Democrats, and which could have gotten through the Senate in this session of Congress had the filibuster rules been significantly changed to prevent the GOP Senate minority from effectively obstructing and killing any major piece of legislation lacking at least the minimum of five GOP votes required to defeat a filibuster (assuming that all Democrats would vote to end any given filibuster, which is no guarantee), was always going to die in the House anyway, in this session of Congress. Thus, Reid likely perceived there was little practical benefit in this session of Congress to amending the filibuster rules.
Second, Reid and other senior Democrats in the Senate may have been looking forward to the off-year elections in 2014. Jay Rockefeller in WV and Tom Harkin in Iowa have already announced they will not seek reelection. That will almost certainly lead to a net pickup of at least one seat for the GOP in WV, and the GOP might also very well pickup the Iowa seat as well. Then, there’s the open seat in Massachusetts created by John Kerry’s resignation to become Secretary of State (although Scott Brown’s announcement yesterday that he will not run for that seat in the special election may reduce the chances of that seat swinging back into the GOP’s column). As the Democrats will again be defending many more seats in the 2014 elections than the Republicans, and given the historic precedent of the weariness with the President’s party that often sets in with the American public in the second term of a presidency (coupled with the fact that the GOP did so well in the last off-term elections in 2010), Reid may also have been concerned with significantly cutting back the minority’s power in the Senate by retrenchment of the filibuster rules in the face of the not unlikely prospect that the Democrats may find themselves in the minority in the Senate again in just two years.
Third, the filibuster and related hold rules not only maximize the power of the minority party but also give tremendous leverage to individual senators. Whatever senators in the majority party think about the power the existing filibuster rules affords the minority party to frustrate the majority party’s ability to enact into law its policy preferences, probably every senator is reluctant to change the rules that many, if not most, of them have resorted to from time to time to place a hold on a President’s nominee(s) or to threaten a filibuster to, in effect, extort significant leverage for a pet project or policy of their own or to secure some favor for key constituents or financial backers of their own campaigns.
While I agree with the position you articulated in one of your earlier comments on prospective filibuster reform that effective functioning of our federal government would be better served by elimination of the filibuster rules — elections in representative forms of democracy, after all, do and should have consequences — the prospect for abolition of the filibuster in the Senate appears remote, in light of the outcome this go round and the GOP majority’s backing down from its threat to resort to the so-called “nuclear option” back during the Bush 43 Administration when Bill Frist was the Senate Majority Leader.
Greg Schaefer