US Politics: Why the "Filibuster" Issue May Cast a Shadow Over President Obama's Speech

Today at 10 a.m. the Senate will convene for the first time since 5 January. The issue of the day, hours before President Obama gives his State of the Union address will be filibuster reform.

The topic has been debated extensively over the last 12 months, and especially since the end of July after the DISCLOSE Act intended to reform campaign finance laws was defeated by "obstructionist" tactics. Possibly this afternoon, more likely later in the week, the Senate will finally decide whether or not to reform the rules that made the last two years the most filibustered in history of the chamber, with 400 bills passed by the House never reaching the floor of the Senate for debate.>

Back in July when Senate Majority Leader Harry Reid indicated he favoured filibuster revision, and even on 5 January when 26 Senators backed the reform proposal S. Res. 10, introduced by Democrats Merkley, Udall, and Harkin, it appeared the topic would generate an acrimonious tussle in the Senate. But within the last 48 hours, it seems theat during the extended recess of Senate the leadership of both parties have decided that any changes in the filibuster will be less drastic than envisioned by the backers of S. Res. 10. CNN reported last night that “supporters of reform do not appear to have enough bipartisan support to force sweeping changes,&rdquo. Instead negotiators on rule changes “are considering at least three smaller changes aimed at preventing individual senators from clogging up the Senate's legislative pipeline.”

The last six months has witnessed a bewildering array of opinions aired on both sides of the political divide, with the same conservative blogsite posting this vehement defense of Republican filibustering tactics, along with this one explaining why 'Conservatives should welcome end to filibusters' And no one, it seems, can agree quite what constitutional and procedural precedents govern the operating rules of the Senate when it comes to the filibuster.

The current measure, S. Res. 10, is based on eight principles, the first of which boldly states, “On the first legislative day of a new Congress, the Senate may, by majority vote, end a filibuster on a rules change and adopt new rules.” This argument is based on the contention, though never defended or explained, that the Senate is not a continuing body, i.e., that every two years a new Senate meets and can make its rules of operation afresh by a vote of 51-49 (or 50-50 if the vice-president supports the reforms). Opponents of reform, however, contend that as only a third of senators are replaced every two years, while two-thirds of senators continue in office, the Senate is in fact a continuing body regulated by the rules of the previous session. As the rules currently stand, a two-thirds majority is required to bring about changes relating to the filibuster. And if that is not confusing enough then the disagreements over what the Founders meant in Article 1, Section 5, Clause 2 of the constitution when they stated “Each House may determine the Rules of its Proceedings,” and Article II, Section 2 which deals with the "consent" of the the Senate in making appointments to the federal bench, leaves the reader somewhat shell-shocked.

"But S. Res. 10 sidesteps all that confusion by adopting the so-called "constitutional option" that allows the Senate to change the rules on the first day of legislative business. It argues that the Senate would become more responsive to the wishes of the electorate by:

• Eliminating the Filibuster on Motions to Proceed

• Eliminating Secret Holds

• Guaranteeing Consideration of Amendments from both Parties

• Requiring Continuing Debate to Maintain a Filibuster (Talking Filibuster)

• Expediting Nominations by Limiting Post-cloture Debate to Two Hours

For the proponents of this proposal the two most egregious recent abuses of the power of a filibustering minority are the hold provision granted to individual senators, and the ability of a minority to merely threaten a filibuster and delay debate on a bill without going on the floor of Senate to explain why.

At the website fixthesenatenow.org, where the case for filibuster reform is explained in detail, the hold is deprecated in the What's Broken section because it has led to:

SENATORS TAKING HOSTAGES

Senator Richard Shelby (R-AL) recently placed a blanket hold on over 70 nominees from the Obama administration in an attempt to force the federal government to award a $35 billion defense contract to Northrop Grumman in Alabama>

ONE SENATOR CONTROLLING THE ENTIRE SENATE

Senator Jim DeMint (R-SC) refused to allow any legislation to move forward that his office had personally not cleared. Instead of voting against the legislation, Senator DeMint blocked any of his colleagues from being able to vote on legislation that did not receive his okay — effectively controlling the agenda for the entire Senate.

S. Res. 10 wouldn't get rid of the hold entirely, but intends to force senators to explain to their constituents why they were holding up legislation. The means for doing this are provided in the 'talking filibuster' requirement, where senators who oppose a vote being taken on a bill must hold the floor in person and debate their position. No other business is allowed to be introduced while the minority hold up the bill under consideration, and if at any point during this talking filibuster “no senator seeks recognition (to explain why the bill should not be passed) then the Presiding Officer shall note that the period of continuous debate has ended and cloture shall considered to be invoked.” Once cloture is invoked a bill can proceed, after a time-limited debate, to a final vote.

However, both CNN last night and the Washington Post on Saturday have claimed that senior aides of both parties have revealed S. Res. 10 has little change of passing. They maintain that negotiations, led by Sen. Chuck Schumer (D-NY) and Sen. Lamar Alexander (R-Tenn), will see three minor changes presented to party caucus meetings at lunch today: An end to the secret hold, a reduction in the number of presidential appointees who need to be confirmed by the Senate, and an end to the right of senators to call for the reading of a whole bill in the Senate before debate can begin.”

It appears that a majority of senators have heeded the warning offered by their colleague Chris Dodd (D-Conn) in his farewell address last November. Sen. Dodd counselled his colleagues that: “I can understand the temptation to change the rules that make the Senate so unique --- and, simultaneously, so frustrating. But whether such a temptation is motivated by a noble desire to speed up the legislative process, or by pure political expedience, I believe such changes would be unwise.”

Democrats, looking at the next election cycle, realise that their majority in the Senate is not sacrosanct. The possibility exists that Republicans could sweep the elections in 2012, and with that control could repeal the individual mandate, the financial cornerstone of healthcare reform, before it is even implemented in 2014. And the more politically astute Democrats realise that is not a catastrophe to gamble with when for the next two years, with the House controlled by Republicans, they are going to see few bills before them that will need strongarm tactics to get past a Republican filibuster.

Perhaps we won't see quite the anger at today's Senate Democratic Caucus meeting as we heard happened at a similar House gathering back in December, when one Representative, frustrated at the administration's compromise with Republicans on tax cuts, apparently 'muttered' (loud enough to hear that is) “f--- the president.” It is the Senate this time after all.

But the negotiations are likely to cause President Obama some niggling problems. On January 5, a long list of liberal organizations sent a letter backing filibuster reform to the Senate that ended "with the reminder that, “as President Obama recently said, 'if we do not fix how the filibuster is used in the Senate, then it is going to be very difficult for us over the long term to compete in a very fast moving global environment'." With the President expected to concentrate on the need for America to become more competitive in the 'global environment' in his State of the Union Address tonight it will be interesting to see how he reacts, in the light of progressive support for reform, to the Senate keeping the filibuster tactic of the last two years largely intact.