Senate Rules OK?

One of the very first items of business in the new Congress is setting each house's overarching rules, which will apply at least throughout the first session (the first year). The House plans some new rules for transparency--posting proposed legislation for 72 hours so all can read what they're voting on, requiring a statement of the Constitutional authority under which the legislation is proposed--things the Republicans want and which will not cause too much angst.

The Senate has a more interesting, and potentially very important, matter that will arise now--it must arise now, because it can not be addressed later--and that is the rules for cloture, also known as the filibuster. The Senate has a tradition of unlimited debate, controlled by the two party leaders. Debate ends when the majority leader and minority leader agree to end it (though others can object to end of debate, as well, they only generally do that when they want to block votes on appointments), or, under the current rules, when 60 Senators or more vote to end debate.

There is a proposal, headed by our own Tom Udall and supported by a letter signed by all 53 senators of the Democratic caucus, to use this opportunity to reduce the ability of a minority to block cloture indefinitely. This change could take a variety of forms: the ones that make most sense are: 1) to have a progressively reducing vote for cloture, say 60 votes the first time, 55 the second a week later, and then reducing by one or two a week thereafter to 51; 2) to require filibustering Senators to debate items continuously--a team of three or four could block all new business as long as they want by staying on the floor "debating" the bill (under current rules, when there is no vote for cloture the Senate moves onto other business); 3) a more limited move to limit the ability of any Senator to block a vote on nominations.

Any of these would make some progress and make Congress less an object of ridicule in the nation. There is an issue actually about the rule under which a change of rules would be considered: there is an existing rule requiring a two-thirds vote to change the rules, and it is very unlikely that Democrats could get enough Republican votes for any change under that rule, but there is also--explicitly in the Constitution--a principle that the Senate sets its own rules. Under that principle, a simple majority could allow either a change in the rules or a change in the rule to change the rules (!), an approach that could lead first to a parilamentary challenge within the Senate (the parliamentarian there would rule on whether the rule change--or change to rule changes--was out of order) and then possibly to some sort of court challenge.

The way to avoid such a slow-motion train wreck would be for some agreement to be reached, particularly between the Majority and Minority Leaders, Sen. Harry Reid of Nevada and Sen. Mitch McConnell of Kentucky, respectively. Reid somewhat improbably kept his role as his party kept a diminished majority and he survived a close scare for his own seat; both he and McConnell derive a lot of their success as party leaders from their in-depth knowledge of the Senate's rules and how to manipulate them to their advantage. Reid may be nominally in favor of a change, but such a change could reduce his power. McConnell will probably need to be convinced that the change will help his overarching goal--to deprive President Obama of a second term--which may be tough to do.

One form of compromise might be for Reid to guarantee McConnell a floor vote on the Republicans' biggest political agenda item--some sort of repeal of last year's healthcare reform bill--once the House approves it. Such a bill would be unable to get cloture under the current rules, which would be very frustrating for the Republicans' political agenda; at the same time, though, if given a floor vote it would be unlikely to pass, and if it did, would certainly be vetoed by Obama and not overridden. Therefore, the Democratic Senate might decide it is worthwhile to give the Republicans their symbolic floor vote, in exchange for rules which would allow some more important legislation the Democrats and the nation will need--like a budget, debt ceiling increase, or whatever--to be able to get to the floor in the future.

Former Senator Walter Mondale, a leader of the change in the cloture rule from 67 to 60 votes some 30 years ago, made a strong argument for a change in a Times editorial this weekend. It appears that Wednesday, January 5 will be the day this item will come up on the Senate's calendar.