Posted on January 28, 2011
Reid’s effort to kill the filibuster, which is the minority’s right to effect legislation, went down in flames in the final rules changes on Thursday.
“In the short term, this is a victory for conservatives. As part of the current minority party in the Senate, their rights will be preserved," said Marty Gold, a former Senate leadership aide who is now an attorney at Covington and Burling.
"In addition, extreme mechanisms that had been proposed to advance new rules and limit filibusters came to nothing in the end,” said Gold.
The rules voted on the floor were less important than the gentleman’s agreements made between Reid and Senate Minority Leader Mitch McConnell (R-Ky.).
Both agreed to never try again to use the nuclear option, which is to change the rules of the Senate with only 51 votes, instead of the established 67 vote margin. McConnell and Reid also agreed to use the filibuster and amendment tree procedural maneuvers less often in the future.
“What we need most in the Senate is a change in behavior in addition to this change in rules. We need to preserve the Senate as a forum for minority rights. We need to preserve the 60-vote requirement for major votes. That will force consensus. That will cause us to work together,” said Sen. Lamar Alexander (R-Tenn.) on Thursday.
Alexander negotiated the bipartisan deal with Sen. Chuck Schumer (D-N.Y) at the behest of McConnell and Reid.
For the past month, Reid has been trying to change the rules of the Senate so that he could pass Democrat-supported bills with 51 votes instead of 60. The Democrat majority in the Senate went from 59-53 after the Republican wave in the midterm elections.
McConnell waged war against the Democrats’ attempted rules changes, to the point that Reid was forced to shut down the Senate for weeks to figure out how to proceed. By mid-January, Reid folded and agreed to bipartisan negotiations on any new rules.
Many believe that Reid conceded defeat because he realized the likelihood of the Republicans taking over the Senate in 2012. If Reid’s rules to trample the rights of the minority had gone into effect, the Democrats could be the ones who suffer the most in the long term.
“The rules compromise reached today will look like a half-measure to the liberal blogosphere,” said Gold. “But if Democrats go into the minority in two years, liberals will be happy for this day.”
The final rules changes which passed the Senate were crafted by bipartisan agreement and only moderately change the institution to end secret holds and waive the reading of amendments.
“Holds” give the power of one state, via one Senator, to stop a vote. The “secret hold” allowed for flexible negotiations behind closed doors to fix the Senator’s concerns without interest groups or other forces intervening. The resolution to end secret holds, which passed 92-4, states that a Senator must publicly disclose a notice of intent to object to any measure or matter.
The rule to waive the reading of amendments, sponsored by Sen. Mark Udall (D-Colo.), ends the ability for a Senator to delay a vote by requiring an amendment be read aloud. The resolution, which passed 81-15, says that an amendment cannot be forced read aloud if the text of it is made available 72 hours in advance of the vote.
More importantly than what happened on the floor, McConnell and Reid made the gentleman's agreement about how the Senate would operate going forward.
“McConnell and Reid both forswore using the nuclear option,” said a source close to the negotiations. “McConnell said that if he’s the Leader in the next Congress, he will not use the same extraordinary means to ram new rules down the throats of the Democrats in retribution.”
Also, the two leaders agreed to not use two important procedural methods as often in order to preserve the great rights of the Senate: to amend and to debate.
McConnell agreed that the Republicans would use the filibuster less often in this Congress. To filibuster means to debate a bill without a time limit to prevent a vote on a bill. Cloture is the process of ending the filibuster, and under current rules adopted in 1975, takes 60 votes to pass. The minority uses the filibuster as a stalling tactic to have more power over debate and vote.
Reid wanted to change the rules so that bills would get voted on with only 51 votes, which would be a lot easier for him to get with 53 Democrats, than the 60 needed now.
In return, Reid agreed to be less active in filling up the amendment tree to block out all Republican amendments. The amendment tree refers to the process of putting amendments on a bill as it goes through the legislation process.
The Majority Leader has the power to add the maximum amount of amendments to the tree, which locks out any amendments by the minority party. Over the past two years, Reid has used his power to fill up the amendment tree drastically more often than had been done in the past.
“The Majority Leader used that power to cut off all amendments and debate 44 times. That’s more than the last 6 majority leaders combined,” said Sen. Alexander on the floor.
Reid agreed to not use up all the amendments, so that the Republicans can offer their alternatives to legislation.
Finally, McConnell and Reid agreed to lessen by one-third the number of presidential appointments which require Senate confirmation. Intending to lessen the backlog of high-level appointees, the final deal is expected to exempt approximately 400 political appointees from confirmation.
The appointee part of the agreement seems to be a victory for Reid because Democratic President Obama has more power to appoint without Senate approval. But Alexander sees it as a win for common sense.
“We confirm too many people. It is not necessary for us to confirm the PR officer for a minor department. There is no need for that,” said Alexander. “We need to be able to work on more important issues.”
Overall, the Republicans came out of this high-stakes political fight ahead because the minority party could have easily been trampled in the Senate.
I’d say the final victor is the American people, who keep the right to be heard, whether their Senator is in the majority or minority.
“What they have done...is create a window in which we have had a good, open discussion about the kind of place we want to work, the kind of Senate we hope would serve the American people the best,” said Alexander.
“And we have come to a consensus about a change in behavior, which I believe, in the end, will be more important than the change in the rules,” he said.