United Liberty

Here we go again. After making a deal with Republicans over the filibuster at the beginning of the current session, some Senate Democrats are threatening once more to eliminate the procedural tactic because they can’t get the votes necessary to push through President Barack Obama’s nominees to regulatory bodies:

Senate Democrats frustrated with the GOP’s blocking of a string of President Obama’s nominees are seriously weighing a controversial tactic known as the “nuclear option.”

The option — which would involve Democrats changing Senate rules through a majority vote to prevent the GOP from using the 60-vote filibuster to block nominations — was raised during a private meeting Wednesday involving about 25 Democratic senators and a group of labor leaders.
[…]
The labor groups expressed frustration over future nominees to the National Labor Relations Board, as well as Obama’s nomination of Thomas Perez as secretary of Labor.

Democrats’ anger also boiled over last week when Republicans stalled Gina McCarthy, the president’s choice to head the Environmental Protection Agency, by boycotting a meeting of the Environment and Public Works Committee.

Both of these regulatory bodies have come under fire over the last couple of years. President Obama made appointments to the National Labor Relations Board (NLRB) early last year, but because the Senate wasn’t technically in recess, those appointments were found to be unconstitutional.

After months of whining about the filibuster, Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) came up with an agreement on the filibuster that will stall attempts by Senate Democrats to go nuclear:

The Reid-McConnell package would create a new path for eliminating filibusters on motions to proceed to new business. Under current rules, a senator can hold up a motion to even begin debating legislation.

The majority leader would be able to bar a filibuster on a motion to proceed if he allows each side to vote on two amendments, according to a Senate aide familiar with the package. Non-germane amendments would be subject to a 60-vote threshold, under this scenario.

This change would be adopted as a standing order that would sunset after two years, creating a trial period. Sixty senators must vote for it.

Alternatively, the deal would allow for expedited consideration of motions to proceed in cases where the majority and minority leaders agree to bring up a measure and eight senators from each party — including the leaders – sign a petition to end debate. Such fast-track consideration of motions to proceed would be set up by permanent rules change requiring 67 votes.

The tentative deal would expedite the process for sending legislation to conference negotiations with the House. But lawmakers would still be allowed to filibuster any effort to send legislation to a Senate-House negotiation.

Despite frequent threats to go nuclear on the filibuster and minority rights, it looks like Senate Majority Leader Harry Reid (D-NV) will temporarily hold off on making changes to the long-held rule when the new Congress comes into session today:

He has a chance to go “nuclear” Thursday, but instead Senate Majority Leader Harry Reid plans to punt a decision on the filibuster until later this month.

With a new Congress being sworn in Thursday, Reid had threatened to invoke what critics call the “nuclear option”: Changing filibuster rules by 51 votes on the first day of a new session, circumventing the usual requirement in which at least 67 senators are needed to change Senate rules.

Instead, he’ll employ a circuitous procedure to technically keep the Senate in its first legislative day by sending the chamber into recess — rather than adjourning. That move would keep the Senate in session, preserving his option of pushing forward with the so-called nuclear option at a later date.

That will buy Reid time for further negotiations with Senate Minority Leader Mitch McConnell to see if they can reach a bipartisan agreement, aides said Wednesday. It could delay the fight until the week of Jan. 22.

Reid and Senate Majority Leader Mitch McConnell (R-KY) agreed to some rule changes, including eliminating “secret holds” after the 2010 mid-term election. McConnell also agreed to scale back use of the filibuster, although the rules surrounding the tactic were left untouched.

Written by Mark A. Calabria, Director of Financial Regulation Studies at the Cato Institute. Posted with permission from Cato @ Liberty.

As the current Congress wraps up, and in the after-glo of the election, Senate Majority Leader Harry Reid (D-NV) is proposing to limit the ability of senators to filibuster in the next Congress. Of course, we’ve heard the arguments about Republican “obstructionism” and not allowing measures to come to a vote. Having spent seven years as Senate staff, this is all spin. Reid’s attempt to ”reform” the filibuster is about one thing:  limiting the ability of Republicans of offer amendments that Reid doesn’t want Democrats to have to vote on.

First, let’s remember that the objective of every majority leader is to stay majority leader. To do so means members of his party must win re-election. One of the important ways a majority leader can facilitate such is to protect his members from tough votes. For instance, witness Reid’s current attempts to stop a vote on Rand Paul’s (R-KY) amendment to limit indefinite detention. You’d think that since many liberal voters and groups oppose indefinite detention, Reid would welcome such a vote. But such a vote would put Democrats and President Obama at odds. So Reid’s favored course of action is to avoid such a vote.

Senate Majority Leader Harry Reid (D-NV) said last week that he had plans to have another go at scaling back the filibuster, a procedural tactic used to stall or kill legislation in that chamber. This wasn’t a new threat, Reid has been targeting the filibuster for some time. Back in 2010, when Democrats had a 60-vote majority, Reid threatened to make changes. Senate Republicans made some concessions, scaling back its use and agreeing to do away with “secret holds” on legislation.

But despite the most recent threat, Senate Democrats who want to do away with the filibuster or make substantial changes don’t have the votes, according to The Hill:

Democrats don’t have the 51 votes they need in the Senate to change filibuster rules that could make it harder for the GOP minority to wield power in the upper chamber.

Lawmakers leading the charge acknowledge they remain short, but express optimism they’ll hit their goal.

“I haven’t counted 51 just yet, but we’re working,” said Sen. Tom Udall (D-N.M.), a leading proponent of the so-called constitutional or “nuclear” option, in which Senate rules could be changed by a majority vote.
[…]
The problem for Udall and other supporters of filibuster reform is that many veteran Democratic senators remember when the filibuster was a useful tool in their years in the minority.

On Wednesdays, I noted that Common Cause has filed a federal lawsuit claiming that the filibuster, a procedural tactic used in the Senate to stall legislation, is unconstitutional. This lawsuit was filed despite the fact that Article I, Section 5, Clause 2 of the United States Constitution allows each chamber of Congress the right to craft its own rules.

Despite that glaring fact, Politico quoted Stephen Spaulding, staff counsel for Common Cause, saying, “[The Senate] cannot adopt their own rules, and that’s an issue we think the courts should settle.” It’s a political point more than a lawsuit that they hope will result in any actual change in Senate rules.

But here is the kicker, and perhaps the most important point about Common Cause. Doug Mataconis notes that, when the filibuster was threatened by Senate Republicans over judicial nominees seven years, Common Cause defended use of the tactic:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate’s historic role in the nomination approval process.

“The filibuster shouldn’t be jettisoned simply because it’s inconvenient to the majority party’s goals,” said Common Cause President Chellie Pingree. “That’s abuse of power.”

The filibuster has been brought back up in American politics. Frustrated by the failure to move the Import-Export bill out of his chamber (though it did pass last night), Senate Majority Leader Harry Reid (D-NV) has once again brought up the idea of the so-called “nuclear option” to get rid of the procedural tactic to stall legislation:

Senate Majority Leader Harry Reid (D-Nev.) will not attempt to strip Republicans of their power to filibuster before the November election but is leaving open the possibility if Democrats hang on to the Senate.

The Democratic leader caused a stir on Thursday when he slammed a Republican objection to passing Export-Import Bank legislation without amendments and said he should have listened to colleagues who pushed for changes in Senate rules.

But Reid on Monday said he has no plans to attempt to limit Republicans’ ability to block legislation by a tactic known as the constitutional option — or, by critics, as the “nuclear option.”

“We’re not going to do it this Congress,” Reid told The Hill.
[…]
Democrats are leaving open the option of rewriting the filibuster rule if they keep their Senate majority. Republicans are unlikely to push for such reform if they capture the chamber because they are ideologically opposed to curtailing the power of the Senate minority.

Harry Reid’s use of the “nuclear option” in the Senate is bound to rankle many Republican voters and commentators for the next few days, and not without cause either.  Of course, this is a great opportunity to point out how the being the party in power changes perspectives completely.  For example, The Hill points this out.

Republicans had considered using Reid’s maneuver, dubbed the “nuclear option,” in 2005 to change Senate rules to prohibit the filibuster of judicial nominees. Democrats decried the plan under consideration by then-Senate Majority Leader Bill Frist (R-Tenn.) as a bomb that would decimate Senate traditions.

Oh how the hypocrisy abounds.

You see, when one side considers it, it’s an assault on Senate tradition…until they’re the majority party anyways.  It’s not just Senate rules that are affected either.

For example, recall President Clinton’s decision to get involved in military action in Kosovo and contrast it with President Bush’s decision to get involved in military action in Iraq.  During Clinton’s time, there were then members of Congress banging their fists on the table (metaphorically) and saying we shouldn’t take action without the consent and support of the United Nations, just as when President Bush pushed for military action in Iraq.  The difference?  In Clinton’s time, it was the Republicans making those claims!

In all fairness to the GOP, they weren’t alone in the hypocrisy.  Democrats were absolute hawks on Kosovo, yet were trotting out the Republican’s talking points on Kosovo and using them for Iraq.  Of course, we find a lot of that flip flopped again with Libya.  Ah, aren’t cycles if hypocrisy fun?

The push to reform the filibuster fell flat last week when the United States Senate met for the first time in the new session:

The top Democrat and top Republican in the Senate agreed Thursday to swear off seeking major changes to rules in the chamber in this Congress — and the next one.

Majority Leader Harry Reid (D-Nev.) announced a series of rules changes for the Senate on which he struck an agreement with Minority Leader Mitch McConnell (R-Ky.), among them an agreement to not seek changes to the filibuster or other rules.

“We’ve agreed that I won’t force a majority vote to fundamentally change the Senate … and he won’t in the future,” Reid said in remarks early Thursday afternoon on the Senate floor.
[…]
Under that option, Democrats would have sought reforms by using a simple majority vote, reasoning that, on the first formal day of a new session, the Senate can change its own rules with a majority instead of the 67 votes normally needed to change a rule.

But Democrats never seemed able to reach an agreement on the scope or type of changes, and Reid announced a more modest set of changes on which the parties would vote Thursday afternoon.

The Senate did eliminate “secret holds” in a 92 to 4 vote. This tactic allowed members to anonymously block legislation. They could be defeated with 60 votes, like a filibuster. According to USA Today, “Under the agreement on other rules, Republicans said they won’t filibuster as many bills and Democrats agreed to give the minority more opportunity offer amendments.”