WASHINGTON — Senate Democrats on Wednesday will launch the biggest effort to reform the Senate’s rules in at least 35 years, using a strategy outlined by Walter Mondale in an attempt to rid the Upper House of its debate rules that have stagnated the body to the point that a 60-vote supermajority is effectively required for almost every significant piece of legislation.
New Mexico’s Tom Udall, who will propose the rule change, wrote in a Washington Post editorial today that “common-sense proposals to fix the source of our dysfunction — our broken Senate rules. Reform will make the Senate a better legislative body by instituting the transparency and accountability the American people deserve.”
First among the things he’s considering: Make the filibustering senator, well, actually filibuster. Have them, as Jimmy Stewart did in that memorable scene from “Mr. Smith Goes to Washington,” stand on the floor and talk until they exhaust themselves. It’s notable that when Bernie Sanders of Vermont gave an eight-hour stemwinder on tax cuts just before Christmas break, that it was the first such exhaustive debate in years.
Also out would be anonymous holds, and an end to filibusters of bills that haven’t even come up for debate yet.
“Every few decades the rules change in the Senate, including when Walter Mondale was there,” said Sen. Amy Klobuchar, who is assisting Udall in crafting the rules changes. “No matter who’s in the minority, you have to ask yourself if the rule change works, and in this case it does.”
“Everyone has an interest in the Senate working, and all we’re trying to get to is up or down votes.
Sen. Al Franken’s office said he’s backing the effort.
“Senator Franken strongly supports reforming Senate rules to improve the functioning of the body and has been closely working with his colleagues, including Senator Klobuchar, on several proposals, including reform of the filibuster,” spokesman Ed Shelleby said.
Ending anonymous holds, where a senator can stall anything they want to indefinitely for any reason at all without identifying themselves, could be a fairly easy win. Not only that, but it’s highly likely that holds could be completely reshaped in this process.
During his testimony to the Senate Rules Committee this past May, Mondale proposed weakening the power of holds by removing them before debate officially begins or by putting a strict time limit on debate of, say, two hours. This, he argued, would speed up nominee confirmations that increasingly stall for reasons wholly and completely unrelated to the nominations themselves.
The most egregious example of this came in February, when Sen. Richard Shelby of Alabama put a blanket hold on every Obama administration nominee because he was unhappy the Government Accountability Office halted an Air Force contract for a refueling tanker that would have been built in his home state over a dispute in the bidding process during the George W. Bush administration. (He would later lift the hold under pressure from his colleagues.)
Conservative writer Ed Morrissey, not usually one to agree with Mondale, called out the hold as illegitimate. “The hold process is perfectly legitimate in stopping a bad candidate from immediate confirmation. It isn’t at all legitimate to hold up every single appointment to demand more pork for one’s state, or favorable bid decisions, or any other gimme impulse.”
Not certain yet is possibly the most explosive change the Udall group could offer: Reducing the number of senators needed to invoke cloture.
That would be especially tricky because obvious political considerations would come more immediately into play. For example: There are 53 Democrats and 47 Republicans in the Senate, so one could reasonably expect GOP leaders (for whom the filibuster was their go-to stall tactic in the 111th Congress) to have concerns about moving the cutoff requirement closer to 53.
Mondale suggested reducing the cloture number “to say somewhere between 58 and 55” from its current 60.
“The number 60 worked for us then, but in this harshly-partisan Senate of today I believe it’s a hill too high,” Mondale said. “However, it would worry me to reduce the cloture number all the way down to a simple majority to end debate. It might be more efficient, but the Senate has a much higher calling.”
Another plan, this one from Tom Harkin of Iowa, would have a rolling cloture number that starts at 60 but gradually moves down so filibusters can eventually be broken with 51 votes.
Then there are the plans to change the burden of the filibuster. Currently, any senator can simply inform their party leader that they intend to object, and the leader will file an objection on behalf of an anonymous member. The majority then has to round up the votes to bust the filibuster, which can be an issue if the Senate is operating under capacity (as it frequently does, due to illness, death, travel, etc.).
So some proposals would see the burden shift to the minority. The stand-and-speak rule is one in that vein, as are disclosure rules that would force a senator to sign their hold so their office takes the full weight of any public pressure against the hold.
Then there’s what I call the reverse cloture vote. Rather than require 60 votes to cut off debate, require 40 votes to keep going. It puts the burden on the minority to sustain a filibuster, rather than on the majority to end it.
Klobuchar said she outlined each of those changes and others (15 in all) in a recent Democratic caucus meeting. No decision has yet been made on whether they’d be included in the Udall group proposal because “we’re still gauging what support there is for each of these proposals.”
However, several Republicans argue that no changes are needed at all. Had the previous Congress only needed 50 votes, the Obama administration would now be beginning to sketch out carbon cap-and-trade enforcement laws, while the Department of Health and Human Services prepared for the 2014 start of a public health insurance option. Those and others were policies that had 50 votes in the Senate in 2009-10 but died for lack of 60.
Instead, they argue what Democrats really want to do is restrict the rights of the minority and ram through their legislative agenda no matter what. Sens. Lamar Alexander of Tennessee (the top Republican on the Senate Rules Committee) and Pat Roberts of Kansas have argued that the frequent invocation of the filibuster was in response to not having enough time to debate, and from an inability to offer amendments to bills.
Alexander, according to the New York Times, will give a speech today in which he’ll say that “voters who turned out in November are going to be pretty disappointed when they learn the first thing Democrats want to do is cut off the right of the people they elected to make their voices heard on the floor of the U.S. Senate.”
Mondale’s ‘Constitutional option’
This next bit delves into the murky waters of Senate procedure, so I enlisted a bit of help in its explanation from Steve Smith, the oft-quoted professor of political science at Washington University in St. Louis, who commutes there from the Twin Cities.
Mondale’s plan, known by proponents as the “Constitutional option” and by opponents as the “Nuclear option,” begins by noting that the Constitution provides in Article I, Section 5 that “each House may determine the rules of its proceedings.”
For the House, that means establishing rules every two years. The Senate, which is more of a continuous body, doesn’t typically change its rules at the start of each session, but Mondale says they can.
The same process was initiated in the 1970s when Mondale tried this himself in a mostly-successful effort to bring the number of senators needed to cut of debate down from 67. In that instance, however, a compromise was reached at needing 60 votes, so the rest of the procedure was abandoned.
Here’s a highly-simplified version of how it works: At the start of the session (Wednesday at noon), Udall has pledged to make a motion regarding the rules. Someone inevitably objects to say he can’t do that because:
- The Senate is an existing body that carries over its rules from session to session, and
- There’s a process already in place for rules motions that requires 67 votes to change the Senate’s rules.
Udall’s response, per Mondale: Yes I can, because of Article I, Section 5 of the Constitution, which doesn’t specify a supermajority for rules and thus implies a simple majority needed. Senate rules can’t trump Constitution.
The presiding officer (a member of the majority party) then rules in favor of the motion. The person who objected before objects again, in which case Udall floats a motion to table the objection. That is decided on a majority vote. If Udall can get that majority vote, then there is no objection to the ruling and we continue on with the largest change to Senate rules in more than three decades.
What complicates this whole thing even more is that all that political theater might not actually be completed for weeks. Multiple Democratic staffers confirmed to me reports that Majority Leader Harry Reid won’t adjourn the Senate, so they’d technically be in the same “legislative day” until mid-to-late January, as Democratic and Republican leaders work to negotiate a compromise plan.
Walter Mondale’s full testimony to the Senate Rules Committee on Rule XXII, and how he’d go about changing the filibuster rules.