WASHINGTON — U.S. Sen. Bob Dole had just assumed the mantle of Senate majority leader, after the Republican landslide of 1994, when he confronted a problem.
Piles of Republican legislation from Newt Gingrich’s self-styled “revolutionary” House were stacking up in a narrowly divided, more deliberate Senate, and Democrats were threatening to gum up the works with amendments that would stall the bills.
Dole turned to the Senate’s Democratic master of floor procedure, Robert Byrd of West Virginia, who taught him a parliamentary trick known to Senate insiders as “filling the tree,” Dole recalled.
The convoluted procedure allows the majority leader to claim all opportunity for offering changes to a bill, effectively preventing any other senator from proposing an amendment intended to slow down legislation or force a politically embarrassing vote.
“I never knew what ‘filling the tree’ was until I tried it, but it turned out to be pretty good,” Dole said, ruefully accepting a share of the blame for the parliamentary arms race that has consumed the Senate in recent years. “I don’t think there’s any credit.”
The increased use of the tactic, which had previously been rare, is part of the procedural warfare that has reached a zenith over the past two years in the Senate. Republicans threaten to filibuster and propose politically charged amendments, Democrats fill the amendment tree, and Republicans filibuster in retaliation.
The tactic initially meant to speed bills has instead helped slow them down. The Senate - the legislative body that was designed as the saucer to cool the House’s tempestuous teacup - has become a deep freeze, where even once-routine matters have become hopelessly stuck and a supermajority is needed to pass almost anything.
As a result, the first fight of the next Senate, which convenes in January, is not likely to be over a fiscal crisis, immigration, taxes or any issue that animated the elections of 2012. It will instead probably be over how and whether to change a troubled Senate, members and aides say.
With his majority enhanced and a crop of frustrated young Democrats pushing him hard, Sen. Harry Reid of Nevada, the Democratic leader, says he will move on the first day of the 113th Congress to diminish the power of Republicans to obstruct legislation.
“We need to change the way we do business in the Senate,” said Sen. Tom Udall, Democrat of New Mexico. “Right now, we have gridlock. We have delay. We have obstruction, and we don’t have any accountability.”
The pressure leaves Reidwith a weighty decision: whether to ram through a change in the rules with a simple majority that would significantly diminish Republicans’ powerto slow or stop legislation.
The rules changes under consideration may sound arcane, but they would have such a profound impact that they are referred to as the “nuclear option.” In effect, they would remake a Senate that was long run on compromise and gentlemen’s agreements into something more like the House, where the majority rules almost absolutely.
Critics of the idea, who exist in both parties, say such a change would do great damage, causing Washington to careen from one set of policies to another, depending on which party held power.
Sen. Mitch McConnell of Kentucky, the Republican leader, said he would aggressively fight any rule change and blamed the Democratic majority for theSenate’s dysfunction.
“This notion that the Senate is dysfunctional is not because of the rules,” he said. “It’s because of behavior.”
Supporters of the idea, who also do not fit a neat ideological profile, argue that the collegial Senate of the past no longer exists and that American democracy is often paralyzed as a result. Today’s Senate, they say, has left crucial positions unfilled, like a confirmed head for the new Consumer Financial Protection Bureau, and is preventing action on major issues like job-creation proposals.
“There is a tendency to look to the past through rose-colored glasses, to some mythical golden era when everyone got along and cooperated. That’s not true. It’s always been tough, and it’s always been rough,” said George Mitchell, a former Democratic majority leader who would now back some changes. “But I do believe and accept the premise that it’s worse now.”
Doing almost anything in the Senate today requires 60 votes, because Republicans,who will have 45 seats in next year’s Senate, are blocking even procedural motions to begin debating bills or considering nominations. The act of doing so is commonly called a filibuster, although it no longer requires holding the Senate floor for hours.
In the 93rd Senate, which met in 1973 and 1974, the number of cloture motions filed - a rough measure of filibuster threats - jumped to 31, from an average of fewer than two per congressional term between 1917 and 1970. Throughout much of the next two decades, cloture votes continued to rise, regardless of which party was in the minority, with many such motions filed in anticipation of filibusters.
“The notion that this started in 2010, I’m sorry, that’s so revisionist,” said Lauren Bell, a political scientist at Randolph-Macon College in Ashland, Va.
But the current Republican minority has taken the practice to a new level. During the past three sessions of Congress, the majority leader has resorted to an average of 129 cloture motions, a near doubling from the level when Democrats were in the minority from 2003-07.
The current Democratic majority has contributed to the parliamentary tit-for-tat, by filling the tree more than in any previous Congress. It has done so more than 20 times in each of the past three sessions of Congress. The previous high had been 11, under Republican leadership in 2005 and 2006.
“None of this is new,” said Trent Lott, a former Republican Senate majority leader. But, he added, “I’m shocked at how much deterioration has occurred.”
Senators from both parties agree that one cause of the trends is the ease with which lawmakers can now bring the institution to a halt. Once the Senate found a way to move on to other business while a bill was being filibustered, senators faced little personal pressure against mounting one. And when the number ofvotes needed to break a filibuster dropped to 60 in 1975, from 67, the Senate minority could claim that this change allowed for reasonable bipartisan compromise.
The battles over procedure themselves helped corrode the environment. Talk of the “nuclear option” began almost a decade ago, in President George W. Bush’s first term. With Democrats thwarting Bush’s judicial nominees, Sen. Bill Frist of Tennessee, the Republican majority leader, considered overriding filibusters with a majority vote. Reid, then the minority leader for the Democrats, fought back.
Ultimately, the two parties averted a larger confrontation by a gentlemen’s agreement to filibuster judicial nominees under only the most egregious circumstances, as when a nominee is overly partisan or obviously unqualified. In Bush’s first term, the Senate approved 89 percent of his judicial nominees. The rate fell to 74.5 percent in his second term, and was 75.5 percent in President Barack Obama’s first term.
In October 2011, Reid took the first step toward going nuclear, a step many of his predecessors have contemplated but never done. He used a simple majority - 51 to 48 - to override the Senate parliamentarian, who had ruled that additional Republican amendments were in order on a China currency bill, even though they were unrelated to it.
Around 40 Democrats - led by Sens. Udall, Tom Harkin of Iowa and Jeff Merkley of Oregon - have indicated their support for a set of broader rules changes. Two incoming senators, Elizabeth Warren of Massachusetts and Chris Murphy of Connecticut, have also pledged their support. The filibuster would be prohibited on motions to take up legislation or nominations and motions to take approved legislation to conference with House negotiators. A simple majority could approve these motions, which would reduce the amount of time the Senate spends on procedural matters.
Beyond that change, Democrats want to make filibusters harder to execute. Although filibusters would be allowed on final votes to pass legislation or confirm nominees, filibusterers would have to go to the Senate floor and speak.
Front Section, Pages 4 on 11/25/2012