November 2010, Week 3


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Fri, 19 Nov 2010 23:09:06 -0500
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Dems Vow to Push Filibuster Reform

Ryan Grim
11-19-10 06:24 PM

WASHINGTON -- Leaders of the effort to reform the
filibuster in the Senate are pushing forward despite
the election outcome, working to gather support within
the Democratic caucus while reaching out to
Republicans. Sen. Tom Udall (D-N.M.) said that he and a
core group of members will canvass their colleagues
throughout November and December.

"We'll start the informal discussion in our caucus. Are
you for reform? What kind of reform?" Udall told

On the first day of the 112th Congress, Udall said, he
will rise and make a motion to establish rules for the
session, making the argument that the chamber is
entitled by the Constitution to set its own rules. Vice
President Joe Biden is then expected to rule -- as vice
presidents have done in the past -- that the motion is
in order. Senate Republicans will challenge the ruling
and Democrats will move to table the objection. Only 50
votes will be needed to table the objection. If
Democrats succeed, a debate would then begin over how
to reform the rules.

Udall said he and newer Sens. Jeff Merkley (D-Ore.),
Jeanne Shaheen (D-N.H.) and Mark Begich (D-Alaska) have
been gradually winning support for their effort to
reform the rules.

Abolishing the filibuster is far from the only reform
under consideration. "You could clear out a lot of the
underbrush," said Norm Ornstein, a constitutional
scholar who advised Udall on the effort. Currently,
after the majority files a cloture motion to break a
filibuster, 30 hours of "debate" must happen before the
vote. That vote is followed by another 30 hours until
the final vote is held, which means a single effort can
take a full week of floor time. That time could be
reduced or eliminated -- or split in two 15-hour
sections divided among the parties, Ornstein said. Or
separate rules could exist for executive branch
nominees, alleviating the crisis of understaffing that
has beset both administrations since at least 2007.

Ornstein said that instead of sticking to the strict
number 60 to defeat a filibuster, the threshold could
fluctuate depending on the number present. "The other
simple thing you could do is switch to three-fifths of
those present and voting. They didn't really think
about what the consequences of it are" when the rule
was originally written, said Ornstein.

Merkley said that requiring the minority to do
something -- give a speech, show up, anything -- in
order to obstruct Senate business would alter the
dynamic. Under current rules, it's the obligation of
the majority to affirmatively squash a filibuster
rather than the minority to keep it going.


If the minority is made to stand up, said Merkley,
"there is a price to be paid in terms of time and
energy and visibility if you're going to block" action
in the Senate.

Merkley said that the issue has penetrated the public
consciousness. "Every time I speak to a group about the
need to change the Senate's rules as a result of its
paralysis and dysfunction, people applaud. They may not
understand how the rules work, but they can understand
that they can't get the judicial nominations approved,
or advisers on the executive branch. Some particular
objection can create a week's delay. That's the big
surprise to me during this break, the fact that public
understands this in a way I've seen them not understand
any process this year. They understand the process is
badly broken and needs to be fixed."

Getting Republican support for the effort might not be
as hard as it would've been last session. "We have a
weakened legislative body. It's in the interest of both
Democrats and Republicans who want to get things done"
to reform the rules, said Udall.

Democrats hold 53 seats but face an uphill battle in
2012 that could see Republicans claim control of the
chamber. Incoming Indiana Republican Dan Coats has said
he supports eliminating the filibuster on the motion to
proceed, which would grease Senate operations
considerably but wouldn't dramatically reduce the power
of the minority to obstruct legislation.

If the GOP wants to overturn health care reform or
otherwise roll back Democratic gains, eliminating the
filibuster would likely be a necessary step. For that
reason, senior Democratic senators, who've spent time
in the minority, are cautioning against getting rid of
the filibuster. It comes down to what you see as the
function of the Senate: To defend the gains of the past
or to enact further reform.

That the effort has come as far as it has is partly a
function of Senate Majority Leader Harry Reid's
evolution on the subject.

If there was one crystallizing moment for Reid, when he
decided that the Senate was broken and in need of
filibuster reform, it came on the early, early morning
of December 18th, 2009, when Democrats were pushing
through a defense-spending bill that the military said
was desperately needed to keep the lights on and the
bullets flying. For the better part of the last decade,
Democrats had played the unpatriotic punching bag,
their loyalty to the country called into question if
they so much as asked for some type of condition to
come along with the blank check for the undeclared

Hours before the vote, it became clear the GOP was
willing to stand in lockstep against "funding for the
troops" -- and not some emergency supplemental, either,
but the annual spending bill itself -- as part of a
strategy to delay an impending vote on the health care
bill. The day of the vote, Senator Thad Cochran of
Mississippi, the senior Republican on the
Appropriations Committee, who had previously supported
the bill, backed away. Without Cochran, Democrats were
two votes short: Russ Feingold, on principle, votes
against war spending bills. At a meeting of the
Democratic caucus, colleagues pleaded with the famously
stubborn Wisconsin progressive to set aside his
objections this one time and vote for cloture. He
finally agreed and was rewarded with a standing ovation
from fellow members who often chafe at what they see as
his grandstanding righteousness. The 60th vote would
need to be Bob Byrd, who lay dying at home.

Reid called the vote after midnight, unsure if the
senator from West Virginia would have the strength to
make it to the chamber in such weather, and worried
what toll the effort would have on the man he loved as
an older, wiser brother. While the Senate waited on
Byrd, three Republicans who wanted to vote for the
bill, but who didn't want to be the 60th vote, sat in
the GOP cloakroom. If Byrd showed, they would emerge
from their toasty confines and vote to support the
troops. If Byrd failed, they would vote no, in lockstep
with their colleagues, and the measure would fail.

Reid was livid. "Rarely have I seen such brazen
irresponsibility and rarely have our nation's citizens
received such little regard from their leaders," C-
SPAN-watching insomniacs heard him say on the Senate
floor. "We're here at 1:00 in the morning because of
the Republicans. We could have voted for this bill two
days ago. I've even had some Republican senators tell
me, regretfully and regrettably, they've admitted to me
personally this: They've told me plainly that while
they want to support our troops, they fear retribution
from their own leaders, retribution from their own
leaders. We know senators on this side of the aisle
have made commitments to vote for this. That's not
exactly what John Kennedy, who was not only president
of the United States, but a war hero, who served in
this very body, would call a profile in courage."

Byrd, defiantly, arrived, basking in the fist-pumping
and back-slapping of his colleagues. Passage assured,
several Republicans emerged from the cloakroom to vote
aye and cloture was envoked, 63-37. That Republicans
had used the filibuster rule for no other purpose than
to obstruct the Senate -- Does anyone seriously think
Senate Republicans opposed the funding? -- and, in the
process, had dragged Byrd out of his deathbed,
infuriated Reid. Byrd would die in June, after enduring
a seemingly endless string of late-night and early-
morning votes.

Reid is a born protege rather than a mentor, a man
fiercely loyal to those he looks up to. Byrd was one of
those men and to watch him run ragged by the very rules
he cherished -- and, in many cases, wrote himself --
was too much for Reid.

Seven weeks later, at a briefing with progressive media
on the Hill, Reid announced that he was open to
reforming Senate rules.

"The filibuster has been abused. I believe that the
Senate should be different than the House and will
continue to be different than the House," Reid said.
"But we're going to take a look at the filibuster. Next
Congress, we're going to take a look at it. We are
likely to have to make some changes in it, because the
Republicans have abused that just like the spitball was
abused in baseball and the four-corner offense was
abused in basketball." In an interview with HuffPost
several months later, Reid used the same analogy to
recommit to reforming the rules.

Reid had a long way to travel to get to where he now
is. In his 2008 memoir, "The Good Fight: Hard Lessons
from Searchlight to Nevada," Reid calls his opposition
to Bill Frist's "nuclear option" -- a threat to
eliminate filibusters of judicial nominees -- the
greatest fight of his life.

Reid, looking back, warned in his memoir that the
proposal was a "Pandora's box." Once opened, he said,
"it was just a matter of time before a Senate leader
who couldn't get his way on something moved to
eliminate the filibuster for regular business as well.
And that, simply put, would be the end of the United
States Senate."

Reid encouraged Mark Pryor, a Democrat from Arkansas
who has conspicuously noted that there is no IQ test
needed to be a senator, to work with Republicans to
find a compromise. He also enlisted Joe Lieberman, whom
he would call on years later to forge a deal on the
stimulus, and pressed him to stay involved despite his
reservations. Seven Democrats ultimately signed a pact
with seven Republicans that would allow some judges to
go through but allow the filibuster to be used in
"extraordinary" situations. Since the GOP has become
the minority, however, entirely ordinary nominees have
been filibustered with regularity.

For the moment, the filibuster had been preserved.
"Stop smiling so much. Don't gloat," Susan McCue, his
longtime aide and confidante, told him as he prepared
for a victory-lap press conference.

"There are senators who are institutionalists and there
are senators who are not," Reid wrote in his book. Reid
is a Senate institutionalist, someone who has come to
love the chamber as an end in itself, a living
reflection of the wisdom of the founders of this
nation. "United States senators can be a self-regarding
bunch sometimes, and I include myself in that
description, but there will come a time when we will
all be gone, and the institutions that we now serve
will be run by men and women not yet living, and those
institutions will either function well because we've
taken care with them, or they will be in disarray and
someone else's problem to solve."

That day came sooner than Reid could have foreseen. The
Senate has not been well taken care of, and is now
Reid's problem to solve. Reid's opposition to changing
the rules in 2005 was rooted in his love and respect
for the institution; his push to change the rules today
is based on that same affection. With the death of his
Senate mentor, Bob Byrd, there may be nobody who knows
the rules of the Senate as well as Reid. And to see
those rules abused has tried him, his colleagues say.

Reid, said Sen. Maria Cantwell (D-Wash.), has "a keen
sense that this institution, to work for the betterment
of mankind in America, is about coming together and
compromising on things and getting things done. So I'm
sure he finds it an affront that these shenanigans of
just stall, while the economy's stalling, is just an
inappropriate response by the other side. I'm sure he's
thinking about what you can do to change it if that's
their continued response."

Reid isn't afraid to use his knowledge of the rules to
outmaneuver rivals. His parliamentary joust with Sen.
Tom Coburn (R-Okla.), who was saying no long before it
was the cool thing to do, led to his creation of the
"Coburn Omnibus," or "Tomnibus," a single bill in 2008
that was a compilation of as many bills stalled by
Coburn that Reid could pack together. In an interview
with HuffPost, Reid said that he plans to do the same
thing with a collection of some of the more than 300
bills that have passed the House but languish in the
upper chamber "before the end of the year."

There has been much talk about how broken the Senate
is, but the chamber has produced landmark legislation
that easily puts it on par with New Deal sessions of
the mid-'30s that were capped by a legislative deluge
in the mid-'60s. It is more how the chamber has acted,
than what it has done, that has Reid pondering
improvements. But even if he does push hard to end the
filibuster, will the filibuster win? And is Reid
genuinely committed?

John Cornyn, the Republican in charge of Senate
campaigns in 2010, doesn't think so. "Harry's too much
a creature of this institution, where sometimes you're
up and sometimes you're down, and you begin to
appreciate the rules a little bit more when you're in
the minority. I know I have," he said.


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