The Senate after filibuster reform

By Thomas E. Mann
November 25, 2013

The Washington Post editorial page led the charge in denouncing the change in Senate filibuster rules engineered by Majority Leader Harry Reid (D-Nev.) and 51 of his Democratic colleagues last Thursday. Many other media voices quickly followed suit.

Reid’s action to allow a simple majority of senators present and voting — not the longstanding 60 — to end debate and proceed to a vote on presidential nominations to executive and judicial offices (except the Supreme Court) has now been widely characterized as a radical step, certain to accelerate the poisonous partisanship in Congress. It will, critics insist, grievously damage the Senate’s comparative advantage over the House of Representatives in fostering bipartisan negotiation and compromise.

The procedure Reid used — setting a new cloture precedent with a simple majority despite a Senate rule requiring a two-thirds majority to change Senate rules — was gutsy. Yet this method has been long available to the Senate. It was even proposed by Republican Majority Leader Bill Frist in 2005 and occasionally used to make minor changes in the filibuster.

Indeed, the threat by Senate majority leaders to use the “nuclear” or “constitutional” option to address abusive uses of the filibuster has often failed because senators in both parties were reluctant to give up the individual and opposition party power that flow from the filibuster.

But this time was different.

Strong Republican opposition to an up or down vote on President Barack Obama’s nominees to the three vacancies on the D.C. Court of Appeals was the last straw in the face of an unprecedented five-year campaign by the Republicans to use any means — whatever the cost to the operations of government and the country’s welfare — to delay, defeat, disable, discredit or nullify the ambitions and achievements of the Obama presidency.

The Senate has become a battleground for partisan war, not a forum for genuine deliberation and bipartisan compromise. The routinization of the filibuster under Republican Leader Mitch McConnell (R-Ky.) — with a 60-vote threshold for action the new norm, rather than the exception — is a perversion of the intentions of the framers of the Constitution and Senate traditions.

Divided party government under conditions of extreme party polarization is itself a formula for relentless opposition and legislative inaction. The record-setting lack of congressional productivity since the 2010 midterm election proves this. The abuse of the Senate filibuster compounds Washington’s dysfunction by preventing the president from staffing the executive and judicial branches in a timely fashion and carrying out the administrative responsibilities of his office.

No amount of wishful thinking about bipartisanship will change these hard facts on the ground.

The filibuster change is the logical, perhaps inevitable, reaction to Republicans’ vehement, parliamentary-like opposition since Obama’s election and re-election. The window for constructive policymaking that appeared to open briefly after the 2012 election has slammed shut.

This filibuster change was a step Senate Democrats finally felt compelled to take, realizing it could undermine their individual power and ability to stop appointees and policies they strongly oppose when they lose control of the White House and Congress.

For the next year, at least, Obama will be able to fill key vacancies and replace people in his administration he believes should go. The diversity of views within his party and the vulnerability of red-state Democrats will constrain any temptation he might have to swing sharply left. Moderate Republicans not fully on board their party’s radicalization could well find their leverage in the Senate increased once GOP votes against cloture cannot succeed in denying confirmation.

This change in the filibuster rule, denounced by so many, may in fact strengthen the Senate and help change the destructive dynamic that has severely weakened what was once called “the world’s greatest deliberative body.” It will give the president of both parties a reasonable opportunity to get timely up or down votes in the Senate to confirm nominees to executive offices and the federal judiciary.

Senate Republicans retain amply leeway to gum up the works with holds; refusing to agree by voice vote to bundles of noncontroversial nominees; using all allowable debate time with cloture rules; refusing requests that committees meet while the Senate is in session, and other parliamentary tools. So the Senate will not become just like the House. But the objectives behind such steps will be more transparent. Changing the Senate rules should lead to more informed reporting on the uses and abuses of the filibuster, and keep the public better informed about what ails Congress and what they might do to remedy it.

The resolution of internal struggles within the Republican Party will ultimately determine whether the Senate and the U.S. constitutional system can again function constructively. All these developments raise the stakes in the 2014 and 2016 elections, providing a clearer path to more responsive and accountable governance.


PHOTO (TOP): Senate Majority Leader Harry Reid (D-Nev.) speaks to the media about healthcare on Capitol Hill in Washington, October 29, 2013. REUTERS/Yuri Gripas

 PHOTO (INSERT): Senate Minority Leader Mitch McConnell (R-Ky.) speaks to reporters at the Capitol in Washington, September 24, 2013. REUTERS/Gary Cameron



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