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Senate Democrats Looking to End Default Gridlock

January 8, 2013 - by Donny Shaw

Since 2007, the year the Democrats re-gained control of Congress, the filibuster has turned into standard procedure for virtually everything that happens in the Senate. What was once considered a special rule to be used on rare occasions for personal dissent on an issue has become a routine matter of course for obstructing the other side of the aisle and gaining a political advantage.

The filibuster has been so abused that it stops the Senate from accomplishing even the most mundane tasks — like keeping the federal agencies funded and confirming non-controversial judges. It’s even used by the minority Republicans to block bills that they support, just because they want to make it more difficult for the Democrats to run the Senate. Because small and rural states are overrepresentated in the Senate – two senators per state regardless of size – it’s possible for 41 senators (the minimum needed to filibuster) from states representing just 11.3% of the U.S. population to basically shut down the Senate.

So the Democrats, having recently won control of the Senate for another two years, are pushing to change the rules to make the chamber a bit more functional. Their idea: make it easier for a majority of the lawmakers to determine the laws and harder for a minority with an agenda that is un-conducive to good policy outcomes to simply say “no.”

On the first day of the new Congress, Senators Tom Udall [D, NM] and Jeff Merkley [D, OR] introduced S.Res.4, a resolution “to limit certain uses of the filibuster in the Senate to improve the legislative process.” The bill would require that any senator wishing to filibuster would have to actually take the Senate floor and talk continuously, as is the historical norm. Under the current rules a senator can simply announce their intention to filibuster and set off a procedural chain that requires that a supermajority of 3/5ths be needed to pass something. The current process for filibustering is pain-free: filibustering senators don’t need to speak on the floor and they commonly don’t even get identified as the one doing the filibustering. The Udall-Merkley proposal wouldn’t end the filibuster, it would simply inject a little pain back into the process.

Senate Leader Harry Reid [D, NV] is at least supportive of keeping the possibility for passing the Udall/Merkley bill open. On day one of the new session, Reid explicitly objected to carrying over the rules from the previous session, holding open the possibility of voting on a rules change under general parliamentary law, under which only a simple majority would be required for passage. To do this he had to keep the first legislative day open, which means that technically the Senate has not adjourned since convening on Jan. 3rd, they have only recessed. If they recessed, the old rules would be deemed approved, and any rules change would need a supermajority of 2/3rds (67 votes) for passage, as required by the old rules. So the filibuster reform debate is being held open while Udall and Merkley try to convince at least 50 of the 55 Democratic and Independent senators to vote for their reform (in the case of a 50-50 tie, Vice President Biden can be called in to break the tie in his role as President of the Senate). According to a HuffPo whip count, they already have 51 senators leaning in favor.

Meanwhile Senators McCain [R, AZ] and Levin [D, MI] are working on a competing measure that would leave the silent, pain-free filibuster in tact, but require that the minority party is allowed to have up-or-down votes on at least two amendments for each bill. Obviously, filibuster reform advocates oppose the McCain-Levin plan as a backhanded attempt at extending the status quo.

At this point it’s unclear when, and how, exactly, a filibuster reform vote will take place. Reid has been in talks with his Republican counterpart, Mitch McConnell [R, KY] about some sort of bipartisan compromise, so it looks like he’d prefer to find something that can be done with 67 votes and avoid using the rare and potentially divisive 51 vote option. Of course, anything that can get 67 votes is going to be extremely weak, so either Reid is going to have set some hurdles that a proposal must overcome to be considered a meaningful reform, or at least 34 of the Democrats supporting Udall/Merkley will have to stand against a weak bill as being worse than holding out for something better in the future.

Here at PPF, we believe that rules reforms that makes it possible for a majority of the elected officials to make decisions that affect the society are essential to fixing Congress and promoting broader social equality. Crucially, though, we also believe that without further reform, these rules reforms don’t go far enough, and will just paper over structural flaws.

Our goal should be a truly publicly accountable system of participatory democracy, and we need to be clear about the fundamentally anti-democratic nature and design of the U.S. Senate overall. Our current federal government and the corporate apparatus that surrounds it is are functionally anti-democratic and systemically corrupt. Fixing the parliamentary rules may make the legislative system operate more smoothly, but it won’t fix the underlying structural issues that make it a rigged system. For example, we need to look at how money flows in politics, and address the ways in which money from a few drowns out the vast majority of Americans. We also need to look at the ways secrecy is used by our governments to mislead and trick the public into maintaining the status quo, and bring transparency to all non-legit-classified aspects of government operations.

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