WASHINGTON — Frustrated by what they view as a broken institution, a group of senators has revived a push to streamline the legislative process in the Senate and reduce the number of filibusters, a technique used by the minority party to stall legislation.
There is more than one way to filibuster.
Lawmakers can block votes by giving long-winded speeches. U.S. Sen. Strom Thurmond of South Carolina, for example, spoke for 24 hours and 18 minutes straight in an unsuccessful bid to block the 1957 civil-rights act.
Another way is for a series of senators to speak in succession, further delaying a final roll call on a measure.
Lawmakers can also unleash a torrent of procedural motions — repeatedly questioning whether there is a quorum present in the Senate chambers — forcing a roll call of all 100 names.
Filibusters in the Senate can be broken only by 60 votes, or a three-fifths supermajority, in what is known as a “cloture” vote. A final vote on the underlying bill must be taken within 30 hours of a cloture vote.
The Senate’s first order of business when it reconvenes in January, says a group of Democratic senators, should be to employ the “constitutional” or “nuclear” option. They would like the Senate, by a simple majority vote, to change its rules and limit the use of the filibuster.
Changing the rules by a simple majority is known as the “nuclear option” because, critics say, it would destroy any sense of good will in the chamber, making compromise difficult.
Filibuster rules have been changed repeatedly in the past. But those rule changes were passed by a bipartisan supermajority — not in a party-line vote.
In 2006, Sen. Mark Pryor of Arkansas, a Democrat, and a bipartisan group of senators known as the “Gang of 14” fought efforts to use the “nuclear option.” The result was a temporary truce.
Six years later, Pryor said the filibuster has been “abused,” but he opposes changing the chamber’s rules by a simple majority vote.
“The rules themselves are fine, if we have the internal discipline to run the Senate and respect each other,” Pryor said.
However, Pryor said, respect is lacking in the current Congress because of a “small group of senators who have become spiteful and belligerent.”
“Right now, we’re in a filibuster first atmosphere,” he said.
Sen. John Boozman, an Arkansas Republican, opposes any changes to the filibuster rule. He blames Democrats for inaction in the Senate. Boozman said Republicans have little choice but to hold up legislation because Majority Leader Harry Reid, a Democrat from Nevada, has blocked Republican amendments to legislation.
“I understand the concern about excessive filibusters,” Boozman said. “But Sen. Reid excessively uses his ability to make sure there are no amendments to bills. It isn’t fair.”
The Senate operates under “unanimous consent,” meaning a single senator can slow proceedings to a crawl if he opposes a bill. In 1917, the Senate adopted cloture — a procedure by which the votes of two-thirds of the Senate are needed to end debate and proceed to a vote. Later, in 1949, the cloture vote requirement was changed to three-fifths of the Senate.
It was changed back to twothirds in 1959 before reverting again to three-fifths in 1975.
The Senate has struggled with the filibuster rule several times over the past decade, when each party was in power. In 2006, Pryor and the other Gang of 14 members broke the impasse when Democrats, who opposed several Republican judicial nominations, threatened to grind the body to a halt.
Then, last year, Senate Minority Leader Mitch Mc-Connell and Reid came to a “gentlemen’s agreement” that Republicans wouldn’t filibuster Democratic judicial nominations.
“The gentlemen’s agreement is now a dead letter,” said Steven Smith, a political science professor at Washington University in St. Louis.
Democrats, led by Sens. Tom Udall of Colorado and Jeff Merkley of Oregon, have floated several filibuster changes.
They would like to eliminate filibusters on motions to proceed — a vote that the Senate begin debate on a bill — and on conference reports, the final stage in a bill’s life that combines House and Senate legislation. They would also like to enforce “talking” filibusters, meaning that if members want to stall or block legislation, they must actually speak on the floor of the Senate, like Jimmy Stewart did in the classic 1939 movie Mr. Smith Goes to Washington.
Boozman said he opposes both measures.
Pryor said he favors limiting the use of filibusters on motions to proceed, but he’d like to see any changes vetted by the Senate Rules Committee, on which he sits.
Udall and Merkley plan to try to employ the “nuclear option.”
Here’s how it would work: A senator would make a “point of order” that the U.S. Constitution, in Article 1, Section 5 — which allows each house of Congress to “determine the rules of its proceedings” — requires only a simple majority vote.
The presiding officer, in this case Vice President Joe Biden, would uphold the point of order, and then the Senate Democrats would put forward a motion to “table” the motion. A motion to table is not debatable and can pass with a simple majority rather than a three-fifths supermajority.
If a simple majority approves the motion to table, the presiding officer’s decision is upheld, and a precedent would exist for a simple majority to change Senate rules and quash the minority’s ability to filibuster.
Richard Arenberg, co-author of Defending the Filibuster: the Soul of the Senate, warned that using the “constitutional” or “nuclear” option amounted to “breaking the rules to change the rules,” because the Senate bylaws clearly give the minority the right to filibuster and insist on a supermajority cloture vote.
“Once it is established that the majority, by a majority vote, can change the rules, that’s a slippery slope,” he said. “It would be a historic turning point in the U.S. Senate.”
But St. Louis professor Smith said the use of cloture had created a “self-perpetuating supermajority rule,” in the Senate.
“It’s a vicious cycle [that] the framers never anticipated,” he said.
Smith said using the constitutional option would be problematic because the presiding officer is usually the vice president, who “might have the president’s interest at heart, not the Senate’s.”
But even though Senate rules can be interpreted to bar the constitutional option’s use, Smith said, the Constitution clearly indicates that the House and Senate are allowed to change their rules and that since a supermajority of votes isn’t explicitly required in the Constitution to do that, it can be assumed that a simple majority will do.
“Hardly any senator would deny that the Constitution trumps a Senate rule,” Smith said.
The Democratic majority has filed 111 cloture motions during the current Congress. During the 108th Congress, which lasted from January 2005 to December 2006, Republicans controlled the upper chamber and filed for cloture 68 times, when Democrats filibustered.
Since this year’s Nov. 6 election, both sides have been girding for battle over the rules-change attempt.
In late November, Sen. Charles Schumer, a New York Democrat and chairman of the Senate Rules Committee, said the Republicans’ plan seemed to be: “Let’s block everything and tie this place in a knot.”
Schumer said the 111 filibusters far outweigh the number of times Reid has filled the amendment tree — a procedure that blocks further changes to a bill — which by Schumer’s count Reid has done 19 times during the current Congress.
Arizona’s Republican U.S. Sen. Jon Kyl warned that if the Senate uses a simple-majority vote to change its rules, the chamber would turn into a separate version of the House, where the majority makes ironclad rules governing the debate and the speaker of the House “is, in fact, a dictator.”
“I use that term in the kindest sense,” he said.
Kyl entreated his colleagues to revisit the work of the Gang of 14, when “cooler heads prevailed,” and a small group of senators broke through a logjam created by the Democratic minority.
“Today, the shoe is on the other foot,” Kyl said.
The debate in the Senate continues.
Udall, who is pushing for changes, wrote in a USA Today column that the Senate has gone from “the world’s greatest deliberative body” to “a graveyard for good ideas.”
He said he planned to use the “constitutional option” in January to “restore functionality to the Senate.”
Earlier this month, Sen. Chuck Grassley, a nine-term Republican from Iowa, responded on the Senate floor.
“Those arguing for abolishing the filibuster sometimes talk about majority rule as though that is some fundamental principle,” he said. “On the contrary, the aim of our Constitution is to protect the individual rights of all Americans, not the right of a majority to impose its will on an unwilling minority.”
Arenberg said senators who have been around for a while and have served in both the majority and the minority see the situation “clearly.”
They realize, he said, that changing the rules to benefit their party one year can backfire in the future.
“When you’ve been on both sides, you have that perspective,” he said. “The one thing we know about the Senate is that the majority isn’t in the majority forever.”
Front Section, Pages 1 on 12/23/2012