Frustration with the
legislative logjam in the Senate has reached a boiling-over point, and
Senate Democrats intend to test the waters this week with a possible
rare and controversial change in the chamber's governing rules that
could limit the power of any individual senator to slow or stop debate
on any particular nominee or piece of legislation.
Sen. Tom Udall, D-NM, elected in 2008, intends to offer a resolution
on Wednesday, according to his spokeswoman, Marissa Padilla, that could
result in a change not only in the filibuster rule, but also an
elimination of a rule that allows any member to anonymously block, or
hold, legislation or presidential appointees. The resolution would open
the door, by a 51-vote majority, to alter the standing rules which
govern filibusters and holds, among many other things.
"Senator Udall does plan to offer his resolution for the Senate to
take up its rules by a simple majority vote on Wednesday, the first
legislative day of the session," Padilla said, adding that this move
would then allow the body to consider a number of reform proposals "in
order to rein in the needless delay and obstruction that have become so
prevalent."
This contentious move would require a challenge to existing
precedents that establish the Senate as a "continuing body," according
to a nonpartisan Congressional Research Service (CRS) report, one where
the rules continue from one session to another with one-third of the
chamber's membership constantly in existence, unlike in the House, where
the entire membership must be chosen every two years with rules
approved in each new Congress.
Proponents of the change intend to argue, according to a senior
Senate Democratic aide, that on the first day of a new session, the
rules are not yet in effect, with the Constitution delegating the
creation of the chamber's rules to senators, though this runs counter to
historical precedent, this according to Robert Dove, former Senate
Parliamentarian for 12 years spread over two terms.
"That has never happened and has never been the position of the
Senate that that could happen. The Senate rules have never been changed
on opening day and not without debate," Dove said, adding, "I understand
the frustration, but I also understand the value of the requirement for
more than just a majority to end debate...I think (the filibuster rule)
will not be changed." To open up the rules to such a change would first
require a ruling from the presiding officer, which on the first day of a
new session is most often the Vice President, who is also the President
of the Senate. According to the senior aide, VP http://www.foxnews.com/topics/politics/obama-administration/joe-biden.htm#r_src=ramp - Joe Biden
has not yet made his position known on the matter. He could, as past
VP's have done, put the decision to the entire chamber as it involves a
constitutional matter.
Should Biden, a former long-time senator, rule in Udall's favor,
Republicans would be expected to immediately make a motion to overrule
the chair, though this would require a two-thirds vote, a hurdle the
47-seat strong minority would not likely overcome.
If Democrats wrangled 51 votes to open up the rules, an outcome the
senior aide considered too close to call, the floodgates would then be
open for proposals, including a number that the aide called "more
viable." One would mandate a "talking filibuster," one that would
require its sponsor to speak without end, ala "Mr. Smith Goes to
Washington." Another rules change would require a filibustering senator
to get his or her colleagues to join in the blockade on the floor. Still
another, proposed by Sens. Claire McCaskill, D-Mo., Ron Wyden, D-Oreg.,
and Chuck Grassley, R-Ia., would "require that all holds on legislation
and nominees be submitted in writing and automatically printed in the
Congressional Record after one legislative day, whether the bill or
nomination has been brought up for floor consideration or not,"
according to a press release. Sen. http://www.foxnews.com/topics/politics/carl-levin.htm#r_src=ramp - Carl Levin ,
D-Mich., has still another rules change that would eliminate "motions
to proceed," which now require the unanimous consent of all 100 members
in order to start debate on a bill or nominee.
Frustration over the filibuster is a decades-old gripe. According to
CRS, since the Senate's adoption of rules that govern the practice,
"proposals have been advanced to repeal or amend it in almost every
session of Congress." Republicans contemplated a forced rules change as
late as 2005 when many in the party grew frustrated about the slow pace
of judicial confirmations. In the end, Frist was talked out of pulling
the trigger on what many called "the nuclear option," because of its
expected catastrophic affects on the body if implemented. At the time,
then-Sen. Minority Leader Harry Reid, D-Nev, the current Democratic
leader, said, "The filibuster is the last check we have against the
abuse of power in Washington."
As Democrats know that any move to nuke the filibuster carries with
it tremendous risk, as well as reward, compromise talks have been
underway for months behind the scenes with Republicans wanting more
opportunities to offer amendments to legislation, according to a senior
Senate GOP leadership aide. Reid, with his Rules Committee Chairman, http://www.foxnews.com/topics/politics/chuck-schumer.htm#r_src=ramp - Chuck Schumer , D-NY, have been trying to find a middle ground with Minority Leader Mitch McConnell, R-Ky, and http://www.foxnews.com/topics/politics/lamar-alexander.htm#r_src=ramp - Lamar Alexander , R-Tenn.
Bob Dove has been consulted, though the former Parliamentarian, would
not discuss the substance of the private conversations, saying only,
"They're searching for ways to make a change."
Dove said the argument for forcing a change in the rules via simple
majority, ala the Udall resolution, is weak. Democrats are looking to a
complex set of events in 1975 as a precedent for their possible
parliamentary move. Dove said, at the time, the move by then-Sen. Walter
Mondale, D-Minn., to establish a simple majority-vote for breaking a
filibuster, was known as the "dynamite motion." Vice President Nelson
Rockefeller made a ruling in Mondale's favor that shut down debate, a
move that was then sustained by a vote of the Senate. Soon after, the
Senate reversed itself, however, with the aid of the late Sen. Robert
Byrd, D-WV, long known as an expert on the chamber, who introduced a
compromise that reduced the voting threshold for breaking a filibuster.
Whether or not the Rockefeller move established a precedent for
permitting cloture by a simple majority vote has long been the subject
of argument. Byrd, at the time, observed that the reversal vote "erased
the precedent of majority cloture established two weeks before, and
reaffirmed the 'continuous' nature of Senate rules," according to CRS.
"A determined majority and determined vice president could do what
happened in 1975 at any time. It doesnt have to be opening day," Dove
said, but he reiterated that he did not think the move would be
successful.
Several senior Senate Democratic aides close to the process told Fox
they expected Udall to introduce the resolution Wednesday, but Reid
would then likely leave the legislative day open beyond Wednesday,
possibly even for weeks past a mid-January recess, in order to give more
time to negotiators. Closing a legislative day in the Senate, different
from a calendar day, requires an actual recess motion. Reid would
simply not recess the Senate until the talks had either born fruit or a
determination was made to pull the trigger on the 2011 "dynamite
motion."