Senate Democrats will push as one of their first acts in the new Congress a bid to undercut one of the chamber’s most ingrained rules: the filibuster.
The effort that begins today is fueled by Republicans’ growing use of the filibuster -- the refusal to end debate -- to block legislation since Democrats took control of the Senate in 2007.
“The Senate is broken,” said Senator Jeff Merkley, an Oregon Democrat who proposes that lawmakers be on the floor debating throughout the time they are relying on filibusters to derail measures. “You shouldn’t filibuster casually” by being able, as currently allowed, to invoke the tactic “and go to dinner or go on vacation,” he said.
The proposal by Merkley and Senator Tom Udall, a New Mexico Democrat, would require what they call “talking filibusters.” They also would limit the use of a filibuster to blocking a final vote on a measure. Currently, senators can threaten the tactic to stop any debate on a bill, as well as a final vote.
The Democratic push represents a role reversal for the party. Democrats in 2005 threatened to shut down the Senate when Republicans, who then controlled the chamber, proposed curbing the use of filibusters to thwart judicial nominations.
Republican leaders now are cautioning Democrats that their bid to curtail filibusters could come back to haunt them if they lose the Senate majority in the 2012 elections. In the first session of the 112th Congress, Democrats will control the Senate with 53 votes in their caucus, down from the 59 they had in the previous session.
“They’re going to be a lot less enthusiastic about driving a freight train through the Senate if in two years the freight train is the Tea Party Express,” said Senator Lamar Alexander of Tennessee, referring to the activists who helped propel the Republican gains in the 2010 campaign.
Normally, the rule change sought by Merkley and Udall would require 67 votes in the 100-seat chamber, meaning the 47-member Republican caucus could easily block it. Advocates, though, argue that the Senate has temporary power to revise its rules with just 51 votes at the onset of a two-year session.
The use of the filibuster was the centerpiece of the 1939 movie “Mr. Smith Goes to Washington,” in which a freshman senator played by Jimmy Stewart takes the floor to oppose a bill and presses his case until he collapses from exhaustion. In real life, Senator Strom Thurmond of South Carolina filibustered for more than 24 hours in 1957 in a bid to stop a civil rights bill.
In recent decades, few lawmakers have resorted to occupying the floor to engage in a filibuster. Instead, leaders of the Senate’s minority party signal that they intend to filibuster, causing the majority to schedule a procedural vote, known as cloture, on overcoming the tactic. If that vote fails, leaders of the majority party typically move on to other bills.
A rule change adopted in 1975 changed the number of votes needed to end a filibuster from two-thirds, or 67 of 100 senators, to three-fifths, or 60.
Senator Tom Harkin, an Iowa Democrat, is pushing a plan that would alter that number again. Under his plan, the number of votes needed to end a filibuster would drop the longer a measure is under debate. If several efforts to end a filibuster fail, eventually the delaying tactics could be brought to an end by a simple majority of 51 votes.
Demonstrating the increasing use of the filibuster tactic by whichever party is the minority, the number of cloture votes in each Senate session has roughly tripled since the 1980s. In the 2007-2008 session, the Senate took 112 votes to end filibusters. It took 91 such votes in the two-year session that ended last month.
Rules for the House of Representatives don’t allow filibusters. The majority party in the 435-member chamber can bring a bill up for final consideration with a simple majority vote.
In the 2009-2010 congressional session, Senate Republicans utilized the filibuster tactic in unsuccessful attempts to thwart major pieces of legislation, including the overhaul of U.S. health-care system and the revision of rules for Wall Street. The threat of filibusters also was used to block some of President Barack Obama’s executive-branch and judicial nominations, and to stall bills that had bipartisan support and eventually passed, including a food safety measure that the president signed into law yesterday.
Democrats say this record shows that Republicans were mainly interested in being the “party of ‘no.’” Republicans say it is Democrats who have been the obstructionists, with Senate Majority Leader Harry Reid of Nevada frequently blocking them from offering amendments on key proposals.
Democrats have been divided over clamping down on filibusters. In his farewell address to the chamber Nov. 30, Senator Christopher Dodd of Connecticut, who didn’t seek a sixth term in 2010, urged his colleagues -- especially those “who have never served a day in the minority” -- not to tinker with the rules.
“There should be one institution that would always provide a space where dissent was valued and respected,” he said.
Robert Dove, a former Senate parliamentarian, described as “extraordinary” the Democratic effort to change the Senate’s rules with just 51 votes.
Although the rule-change proponents plan to start their bid today after new senators are sworn in, they will likely allow talks on the issue to continue in private for a few weeks. Merkley and Harkin say they can reserve their right to change the rules with 51 votes by recessing the Senate until later this month and then declaring the next floor session the same “legislative day.”
Martin Gold, who provided advice on parliamentary procedure to Tennessee Republican Bill Frist when Frist was Senate majority leader, cautioned against skirting the 67-vote requirement for rule changes.
“Once they proceed down this path, the Senate will be irretrievably changed -- and not for the better,” because “what is being established is a precedent that minorities will therefore always be subject to having rules rammed down their throats,” he said.
The most recent sustained dispute over a rules change came in 2005. After Democrats blocked 10 of President George W. Bush’s appellate court nominees that year, Republicans threatened to push through a rules change with 51 votes that would prohibit the use of filibusters on judicial confirmations. Democrats eventually agreed to let three appointees be confirmed, and Republicans dropped the rules-change threat.
Harkin said he isn’t optimistic that the changes he has sought since 1995 will be adopted.
“The dirty little secret in the Senate is that a senator’s power comes not from what a senator can do, but from what a senator can stop,” he said. “Every senator knows that, and no senator wants to give that up.”
© Copyright 2021 Bloomberg News. All rights reserved.