Dec 312010
Official Photograph of Tom Udall, United State...
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Article first published as Democrats Take up the Good Fight to Reform the Senate on Technorati.

With polls showing an 83% disapproval rating, few people would argue that the Congress isn’t broken. Fewer still would not assign a great deal of blame on a completely dysfunctional Senate. With more than 400 pieces of legislation passed by the House only to die in the Senate of the 111th Congress, the more “deliberative body” has truly become a haven for obstructionism. But that might all change if Senator Tom Udall (D-NM) succeeds in his attempt to reform the filibuster.

In response to a Senate minority that has utterly corrupted the use of the filibuster, Senator Udall, along with fellow Democratic Senators, Jeff Merkley (Ore.), Claire McCaskill (Mo.), and Michael Bennet (Colo.), are leading the way to bring back some form of integrity to this aged parliamentary procedure.

Not mentioned in the Constitution, the filibuster is the product of senatorial rule changes established in 1806 that removed the motion “to move the previous question” and effectively eliminated any ability to end debate on an issue and move to a vote. Yet, even once the potential for filibuster existed, it wasn’t until 1837 that the procedure was first used, and its use remained infrequent for decades.

In 1917, the Senate changed its rules again and created a means to end a filibuster; by invoking cloture, the motion to end debate would be subject to passage by a two-thirds majority vote. Under these rules, the filibuster remained a powerful yet seldom used maneuver that resulted in only 56 filings of cloture through the end of the 91st Congress in 1970.

But starting with the 92nd Congress, things began to change and cloture was filed 23 times during that Senate alone. With 44 filings in the subsequent Senate, it became clear that what was once a rare procedural maneuver was becoming a mainstay for the Senate minority. This led to another rule change in 1975 that redefined the super-majority needed to end a filibuster, setting it at three-fifths — the 60 votes required today.

While use of the filibuster had become more frequent, it wasn’t until the past two Congresses that use was turned to abuse. Cloture filings averaged only 36.4 for each Congress from 1971 through 1990, and started ramping up with the Republican minority of the 102nd Congress, but still averaged only 51.5 from 1971 through 2006. Starting in 2007, with the 110th Congress, complete and utter obstruction was introduced and the tyranny of the minority began.

Viewed historically as a means to ensure that major issues were given a full and fair hearing, the contemporary corruption of the filibuster process has led instead to complete obstruction and the inability of the Senate to conduct even the most routine business. The Republican minorities of the 110th and 111th Congress made the filibuster standard operating procedure, using the procedure to block anything and everything, with no other goal than to impede progress.

In total, there were an unprecedented 275 motions for cloture filed in response to the filibusters of the past two Republican minorities. That’s more filings than occurred during the first 67 years of the motion’s existence. Such absurd levels of obstruction have nothing to do with governing. As is evidenced by the many successful cloture votes that were followed by easy passage of the bill, the new SOP for the GOP is all about delay —about bringing government to a standstill. Why else would the extension to unemployment benefits in late 2009 that survived back-to-back filibusters be passed by the Senate without opposition, 98-0? Or what about the filibuster of Fourth Circuit nominee Barbara Keenan that was eventually broken with a cloture vote of 99-0?

Fortunately for the American people, the Republican minority’s rampant abuse of the filibuster has caused such frustration that the backlash may result in real reform. In a Dec. 18 letter to Majority Leader Reid that was signed by all Democratic senators remaining in the Congress that opens Jan. 5, the majority stated, “We believe the current abuse of the rules by the minority threatens the ability of the Senate to do the necessary work of the nation, and we urge you to take steps to bring these abuses of our rules to an end.”

Senators Udall and Merkley are promoting the use of the “constitutional option” to effect the changes they seek. Using this procedure, the Democrats will be able to change the rules of the Senate with a simple majority vote, but according to many experts, they can do so only on the first day of the new Congress. It’s true that some experts disagree with this assessment and suggest that the majority could effect change at a later date, but there’s little doubt that such a move would be filibustered, so Senator Udall is pushing for the change to occur on Jan. 5.

The reform package being circulated would not end the filibuster, or even change the cloture requirements for a three-fifths majority, but it does include several smart changes that promise to restore credibility to the process. First and foremost, the changes would put an end to the purely procedural threat to filibuster by requiring that 40 senators vote to invoke a filibuster. This would replace the present requirement that the majority leader file a cloture motion to overcome an anonymous objection to a motion to proceed. The package would also require a “standing filibuster” — in the form of Mr. Smith Goes to Washington, the filibustering senator would have to remain on the floor to sustain it.

Other changes being considered include: limiting filibusters to only one per bill — under present rules, many bills are filibustered multiple times, starting with the decision to begin debate, followed by another filibuster on each amendment, and followed by still another filibuster before a final vote; another proposal would shorten the time for debate once cloture is invoked, which is presently set to at least 30 hours; and although it’s not filibuster specific, there appears to be significant support for the elimination of the “secret hold,” a ridiculous practice that enables a single senator to block nominations and legislation — anonymously.

Whether or not any of these changes will come to pass remains to be seen. There’s no doubt that the Republicans will fight these proposals with everything they have, but fortunately, they have very little. The sole opposition argument is something to the effect of “you won’t like this when you’re in the minority.” Republican Senator, Lamar Alexander of Tennessee stated the opposition’s case most succinctly, “Even if Democrats were to change the rules, they will gain nothing except the prospect of retribution in two years while destroying the Senate.” Such rare honesty is to be commended, but it should not in any way temper the complete rejection of the notion that enabling the Senate to perform the duties for which it exists is somehow destructive to the institution.

Contemporary Democrats don’t have much credibility when it comes to standing up against Republican bluster. They are more prone to meet aggression with compromise. As always, the American people can help this situation by contacting their senators and urging their support for reform. They can also sign-on to help Fix the Senate Now. This is “Change We Need.” It’s the good fight for the Democrats, and if the unanimous signing of their letter is any sign, we just might have that rare set of circumstances that embolden people to do what’s right, instead of what’s easy.

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Oct 062010
United States Senate Action on Cloture Motions.
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Article first published as Can Republican Obstructionism be Morally Justified? on Technorati.

In 2008, our nation experienced the most devastating blow to the economy in nearly 80 years. When President Obama took office, the country was hemorrhaging nearly 600,000 jobs per month, and instead of helping address the crisis, the Republicans in the Congress united to obstruct any and all actions taken by Democrats. This complete refusal of an entire party to participate in the process of government is without precedent. Is there really any moral justification for self-serving obstructionism?

The only action taken by the Congress that enjoyed widespread Republican support was the Troubled Assets Relief Program (TARP), which was initiated under President Bush and served mostly to save the Wall Street banks and protect the profits of the very wealthy. But once Obama took the helm, regardless of the fact that unemployment was already at 7.6% and climbing, the Republicans, to the person, decided that their chances for reelection and a return to power were better served by blocking or at least stalling any legislation to promote economic recovery.

The Stimulus was the first major effort of the Congress to help middle and working class Americans. With 3.6 million jobs already lost in the recession, the Democrats were quick to assemble some form of relief. The legislation could certainly have been better formed, but instead of offering thoughtful amendment, instead of participating in the process of government they were elected to serve, the Republicans sat on the sidelines and used the media to launch every form of unsubstantiated ridicule and criticism they could muster. Even to this date, and in spite of the widespread acknowledgment of positive impact by economists, Republicans still attack the stimulus without substance.

But this was just the beginning. On and on the story went, with Republicans in both chambers working against anything that might prove beneficial to the average American. With 47 million people not covered with health insurance, the Republicans fought healthcare reform, and arguably prevented a system that could have reduced costs from being implemented. With the financial system that created the collapse of the economy still intact, Republicans fought against legislation to plug the holes and prevent a similar crash from occurring in the future.

Republicans in Congress fought against job aid to the states. They blocked lifting of the cap on liability for BP’s Gulf oil disaster. They obstructed the closing of loopholes to prevent further offshoring of American jobs; they filibustered small business stimulus; they’ve even set records for the blocking of presidential appointments. There really is no doubt that the Republican agenda, as set by the Party leader when President Obama was elected, Rush Limbaugh, is to do everything in their power to ensure that the President fails — no matter what the cost to average Americans.

Without a filibuster, House Republicans have been unable to obstruct at the level of their party brethren in the Senate. As a result of this discrepancy, the current Congress has passed 420 pieces of legislation through the House of Representatives that are presently stalled in a Senate where the Republican minority filibusters anything and everything, just because it can.

The Senate filibuster, which was insightfully omitted from the Constitution by the Founding Fathers for exactly the reasons of obstruction we now see being played out, has only existed in its present form since 1917.  But after decades of sparing use, the last two Republican minorities have made the filibuster much more prevalent in the Senate than the vote. The last Republican minority set the all-time record for filibusters at 139, but the present crop wasted no time in trying to keep up. Those 420 blocked bills are the result of 118 filibusters through the middle of September.

Over the course of going on two years of a Democratic Presidency and Congress, the Republicans have found nothing that they could support as a party. They have been the categorical “Party of No,” and have not joined the majority in passing a single piece of major legislation to address the worst economic disaster since the Great Depression. Things are so bad that the Republican minority even recently blocked defense spending.

The only thing that Republicans have joined together to support since Bush’s TARP is the extension of the Bush tax cuts for the wealthy. But of course, even this support only materialized in opposition to the Democratic position to extend the cuts for only the middle class.

Republican voters need to ask themselves whether or not they really want to support a party that will fight to protect the rich, that will even promote the falsehood that tax cuts for the rich benefit anyone but the rich. They need to ask themselves if they really want to support a party that will deliberately obstruct the very process of government they are sworn to protect. And most importantly, they need to ask themselves if they can support the utterly immoral tactic taken by Republicans to sit idly by and allow Americans to suffer so that they could improve their chances of regaining political power.

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