Frustration with the legislative logjam in the Senate has reached a boiling-over point, and Senate Democrats intend to test the waters this week with a possible rare and controversial change in the chamber's governing rules that could limit the power of any individual senator to slow or stop debate on any particular nominee or piece of legislation.
Sen. Tom Udall, D-NM, elected in 2008, intends to offer a resolution on Wednesday, according to his spokeswoman, Marissa Padilla, that could result in a change not only in the filibuster rule, but also an elimination of a rule that allows any member to anonymously block, or hold, legislation or presidential appointees. The resolution would open the door, by a 51-vote majority, to alter the standing rules which govern filibusters and holds, among many other things.
"Senator Udall does plan to offer his resolution for the Senate to take up its rules by a simple majority vote on Wednesday, the first legislative day of the session," Padilla said, adding that this move would then allow the body to consider a number of reform proposals "in order to rein in the needless delay and obstruction that have become so prevalent."
This contentious move would require a challenge to existing precedents that establish the Senate as a "continuing body," according to a nonpartisan Congressional Research Service (CRS) report, one where the rules continue from one session to another with one-third of the chamber's membership constantly in existence, unlike in the House, where the entire membership must be chosen every two years with rules approved in each new Congress.
Proponents of the change intend to argue, according to a senior Senate Democratic aide, that on the first day of a new session, the rules are not yet in effect, with the Constitution delegating the creation of the chamber's rules to senators, though this runs counter to historical precedent, this according to Robert Dove, former Senate Parliamentarian for 12 years spread over two terms.
"That has never happened and has never been the position of the Senate that that could happen. The Senate rules have never been changed on opening day and not without debate," Dove said, adding, "I understand the frustration, but I also understand the value of the requirement for more than just a majority to end debate...I think (the filibuster rule) will not be changed." To open up the rules to such a change would first require a ruling from the presiding officer, which on the first day of a new session is most often the Vice President, who is also the President of the Senate. According to the senior aide, VP Joe Biden has not yet made his position known on the matter. He could, as past VP's have done, put the decision to the entire chamber as it involves a constitutional matter.
Should Biden, a former long-time senator, rule in Udall's favor, Republicans would be expected to immediately make a motion to overrule the chair, though this would require a two-thirds vote, a hurdle the 47-seat strong minority would not likely overcome.
If Democrats wrangled 51 votes to open up the rules, an outcome the senior aide considered too close to call, the floodgates would then be open for proposals, including a number that the aide called "more viable." One would mandate a "talking filibuster," one that would require its sponsor to speak without end, ala "Mr. Smith Goes to Washington." Another rules change would require a filibustering senator to get his or her colleagues to join in the blockade on the floor. Still another, proposed by Sens. Claire McCaskill, D-Mo., Ron Wyden, D-Oreg., and Chuck Grassley, R-Ia., would "require that all holds on legislation and nominees be submitted in writing and automatically printed in the Congressional Record after one legislative day, whether the bill or nomination has been brought up for floor consideration or not," according to a press release. Sen. Carl Levin, D-Mich., has still another rules change that would eliminate "motions to proceed," which now require the unanimous consent of all 100 members in order to start debate on a bill or nominee.
Frustration over the filibuster is a decades-old gripe. According to CRS, since the Senate's adoption of rules that govern the practice, "proposals have been advanced to repeal or amend it in almost every session of Congress." Republicans contemplated a forced rules change as late as 2005 when many in the party grew frustrated about the slow pace of judicial confirmations. In the end, Frist was talked out of pulling the trigger on what many called "the nuclear option," because of its expected catastrophic affects on the body if implemented. At the time, then-Sen. Minority Leader Harry Reid, D-Nev, the current Democratic leader, said, "The filibuster is the last check we have against the abuse of power in Washington."
As Democrats know that any move to nuke the filibuster carries with it tremendous risk, as well as reward, compromise talks have been underway for months behind the scenes with Republicans wanting more opportunities to offer amendments to legislation, according to a senior Senate GOP leadership aide. Reid, with his Rules Committee Chairman, Chuck Schumer, D-NY, have been trying to find a middle ground with Minority Leader Mitch McConnell, R-Ky, and Lamar Alexander, R-Tenn.
Bob Dove has been consulted, though the former Parliamentarian, would not discuss the substance of the private conversations, saying only, "They're searching for ways to make a change."
Dove said the argument for forcing a change in the rules via simple majority, ala the Udall resolution, is weak. Democrats are looking to a complex set of events in 1975 as a precedent for their possible parliamentary move. Dove said, at the time, the move by then-Sen. Walter Mondale, D-Minn., to establish a simple majority-vote for breaking a filibuster, was known as the "dynamite motion." Vice President Nelson Rockefeller made a ruling in Mondale's favor that shut down debate, a move that was then sustained by a vote of the Senate. Soon after, the Senate reversed itself, however, with the aid of the late Sen. Robert Byrd, D-WV, long known as an expert on the chamber, who introduced a compromise that reduced the voting threshold for breaking a filibuster.
Whether or not the Rockefeller move established a precedent for permitting cloture by a simple majority vote has long been the subject of argument. Byrd, at the time, observed that the reversal vote "erased the precedent of majority cloture established two weeks before, and reaffirmed the 'continuous' nature of Senate rules," according to CRS.
"A determined majority and determined vice president could do what happened in 1975 at any time. It doesnt have to be opening day," Dove said, but he reiterated that he did not think the move would be successful.
Several senior Senate Democratic aides close to the process told Fox they expected Udall to introduce the resolution Wednesday, but Reid would then likely leave the legislative day open beyond Wednesday, possibly even for weeks past a mid-January recess, in order to give more time to negotiators. Closing a legislative day in the Senate, different from a calendar day, requires an actual recess motion. Reid would simply not recess the Senate until the talks had either born fruit or a determination was made to pull the trigger on the 2011 "dynamite motion."