Only Three Days Until U.S. Senate Decides on Filibuster Reform

On January 3, 2013, the U.S. Senate of the 113th Congress convenes for the first time. One of the first items of business will be adoption or amendment of its rules.

Prior posts have examined the so-called “speaking filibuster” reform proposal led by Senator Jeff Merkley of Washington State. Although I think it does not go far enough to prevent the minority Republican Senators from stopping action on the nation’s urgent business, the only way it can be adopted on January 3rd is by a simple majority vote of at least 51 Senators under the so-called “constitutional option” or “nuclear option.”[1]

This prospect last Friday prompted an even weaker reform measure from four Republican Senators (John McCain, Lamar Alexander, Jon Kyl and John Barrasso) and four Democratic Senators (Carl Levin, Chuck Schumer, Mark Pryor and Ben Cardin).

This so-called bipartisan plan’s main changes would allow the majority leader to prevent filibusters when the Senate starts debating legislation; reduce the number of filibusters when the Senate is ready to start trying to write compromise legislation with the House; ensure that each party would be allowed two amendments to each bill; and reduce the number of federal judgeships subject to filibusters, although not for top judges. This group’s proposal is not a rules change, but rather a “standing order” that would expire next term. In addition, although the proposal does not require a speaking filibuster, a document explaining the proposal said the leaders of the two parties would require it.

In order for this weaker “bipartisan” proposal to block the one from Senator Merkley, the former’s supporters have to obtain the backing of only one more Democratic Senator (in addition to the four that are its original sponsors) that would deprive Senator Merkley’s proposal of the 51 votes its needs to pass under the “constitutional option.”

One of their most promising targets for this additional vote for the weaker proposal has been Senator Dianne Feinstein, who has been reluctant to change the rules on a party-line vote because of concerns about what will happen if and when Democrats are once again in the minority. On yesterday’s “Fox News Sunday,” however, Feinstein said she is hopeful the bipartisan plan will work out, but she would not rule out the Democrats’ going it alone.

According to the Huffington Post, there are two other Democratic Senators that are possible endorsers of the more limited reform. They are Senators Baucus of Montana and Donnelly of Indiana.

Even if the “bipartisan” proposal could deprive a simple majority for the Merkley proposal, it appears doubtful that the “bipartisan” version could obtain the 67 votes it would need for adoption under the current rules requiring a two-thirds (or 67) votes to amend the rules. However, if the Merkley proposal is defeated, its backers could reluctantly support the “bipartisan” version as “something is better than nothing.”

Keep in mind that a  broad coalition of nearly 50 progressive and labor organizations that have been actively lobbying for filibuster reform have rejected the bipartisan proposal, calling it a “recipe for continued Senate gridlock.”

Watch carefully the news from the Senate on January 3rd to learn what happens.


[1] This account is based upon the following: Assoc. Press, Bipartisan Senators Propose Curbing Filibusters,  N.Y. Times (Dec. 28, 2012); Weissman, Lawmakers Suggest New Rules To Speed Up Senate Business, N.Y. Times (Dec. 28, 2012); Breaking the Filibuster, Huffington Post (Dec. 28, 2012); Johnson & Grim, John McCain, Filibuster Reform Opponents Offering Counterproposal, Huffington Post (Dec. 28, 2012); Kim & Everett, Bipartisan compromise pitched on filibuster, Politico (Dec. 28, 2012); McAuliff & Grim, Weakened Filibuster Reform Plan Revealed in Congress By John McCain, Carl Levin, Huffington Post (Dec. 28, 2012); Grim, Weak Filibuster Reform Offer Rejected By Progressive, Labor Coalition, Huffington Post (Dec. 29, 2012); Grim, Dianne Feinstein: Filibuster Reform Headed In Bipartisan Direction, But Nuclear Option Still On Table, Huffington Post (Dec. 30, 2012).

 

Update on Changing the U.S. Senate Filibuster Rule

Prior posts have discussed the internal Senate movement for reforming its filibuster rule that now requires 60 of the 100 Senators to agree to vote on the merits of most proposed legislation and confirmation of presidential appointments. Other posts have covered the pending federal lawsuit challenging the constitutionality of that rule.

There have been further developments on both fronts.

Internal Senate Efforts

Jeff Merkley, Democratic Senator from the State of Washington and the leader of the filibuster reform effort, is building a simple majority (at least 51 votes) for reforming the filibuster rule on January 3, 2013, when the new session of Congress opens. His basic proposal is the so-called “talking filibuster” with these major points according to his December 12, 2012 memo to fellow Senators:

  • If at least 41 Senators voted for additional debate on a legislative proposal, there would be additional debate.
  • Such additional debate would require at least one Senator to be on the floor presenting arguments on the proposal.
  • If there were no Senator present to speak to the proposal, the presiding officer would rule that extended debate was over, and the Majority Leader would schedule a simple-majority cloture vote to end all debate after an additional 30 hours of debate,

Approving such a change by a simple majority vote has been called “the nuclear option” or “the constitutional option.”

In response to a simple majority coalescing to support such a reform, some of the leading Senate Republicans (John McCain, Lamar Alexander, Jon Kyle and Lindsay Graham) are trying to convince Democratic Senators (Mark Pryor, Carl Levin and Chuck Schumer) who are reluctant to use the “nuclear” or “constitutional” option to embrace a more limited reform that could be supported by 67 Senators (the number required by the existing Senate rules). The exact nature of such a more limited reform has not been disclosed. Nor has the likelihood of enlisting 67 Senators to support such a more limited reform been assessed.

Moreover, many observers are skeptical about the ability of the “talking filibuster” proposal put forward on December 12th by Senator Markley to stop the dysfunctionality of the Senate. They point out that the proposal does nothing to prevent “holds” by individual Senators that prevent Senate action or to prevent the offering of amendments during a debate. Nor does this proposal ban filibusters on motions to proceed with consideration of a bill or nomination or require any Senator’s remarks to be germane to the matter at hand. Moreover, who doubts the willingness of the Republican Senators to talk and talk?

As we come closer to January 3rd, a failure to resolve the “fiscal cliff” stalemate may preempt attention to filibuster reform that day and politically eliminate the possibility of changing the filibuster rule by a simple majority.

Litigation over the Filibuster Rule

In May 2012 Common Cause, four members of the U.S. House of Representatives and three private citizens sued certain Senate officers. The complaint alleged that the filibuster rule was unconstitutional, and the defendants moved to dismiss the complaint on various grounds.

On December 5th the U.S. District Court for the District of Columbia issued an order asking that at the upcoming hearing on the dismissal motion the parties should be prepared to discuss all arguments set forth in the briefs and in particular to address Plaintiffs’ vote nullification theory of standing for the plaintiffs who are members of the House of Representatives.[1] The following are the parties’ arguments on that theory from their previously filed briefs:

  • According to the plaintiffs, the House member plaintiffs were in the majority when the House passed the Development, Relief and Education for Alien Minors Act (the DREAM Act) on December 8, 2010, only to have it die in the Senate when it subsequently failed to invoke cloture of the debate 55-41. So too the House member plaintiffs were in the majority when the House passed The Democracy Is Strengthened by Casting Light On Spending in Elections Act (the DISCLOSE Act), 219 to 206, on June 24, 2010 only to have it die in the Senate when a vote for cloture of the debate failed, 59-39 on September 23, 2010. As a result, it is contended, these plaintiffs’ legislative votes were nullified by the Senate’s filibuster rule, and they have standing to sue under Raines v. Byrd, 521 U.S. 811 (1997); Coleman v. Miller, 307 U.S. 433, 438 (1939); and D.C. Circuit cases.
  • The defendants, on the other hand, assert that the House members lack standing under Raines because they have not been individually deprived of something they are personally entitled to  and because their votes would not have been sufficient by themselves to defeat or enact a bill if they had not been nullified.

The December 10th two-hour hearing itself apparently focused on the issue of whether the plaintiffs had standing to bring the lawsuit. Judge Emmit G. Sullivan said the case raised difficult issues and at the end of the hearing asked defense counsel to submit a short brief on certain questions. Later that same day, however, the court limited the request for an additional brief to whether the court could address the political question doctrine without reaching the issue of standing.

The defendants’ supplemental brief of December 11th cited precedents from the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit holding that a federal court may address the issue of lack of justiciability under the political question doctrine without first addressing the issue of the plaintiffs’ standing to bring the lawsuit.

The next day the plaintiffs filed their supplemental brief agreeing with that legal proposition. However, they argued, the case was justiciable on the grounds of U.S. Supreme Court cases holding that rules of the Senate or the House are subject to judicial review. In short, said the plaintiffs, there was no “political question” foreclosing the courts from considering this case.

We now await the court’s ruling on the dismissal motion.


[1] Perhaps related to the standing of the Congressmen in the filibuster case is the U.S. Supreme Court’s recent decision to review a case challenging the constitutionality of the Defense of Marriage Act in which a so-called “Bipartisan Legal Advisory Group” of Congressmen intervened to defend that statute, and the Supreme Court’s order for the parties in that case  to address whether or not this Group has Article III [constitutional] standing in this case.”