Part 4 of American Vision by Bruce Ticker
'The power is not what we can do but what we can stop. What I fear is that this Senate will continue to be dysfunctional...The American people will get more frustrated.'— Sen. Tom Harkin, Iowa
Harry Reid negotiates the George Costanza way, as they do in Seinfeld's Bizarro World.
Reid, the Senate majority leader, reached an accord with Minority Leader Mitch McConnell on Jan. 27, 2011, to retain the filibuster power that Republicans employed to block any kind of government-run health-care system and persist with tax cuts for the wealthy.
Reid and Mitchell's pact allowed Republican senators to submit nearly all the amendments they want to a given measure, and in return Republicans will limit their use of the filibuster.
Sen. Jeff Merkley of Oregon, quoted in The Oregonian, said, "There is nothing that touches the impact of the filibuster on amendments and nothing that touches the impact on bills, so we still may see the same obstruction we've seen before."
Merkley's fears were realized on Tuesday, May 17, 2011, when Democrats proposed ending tax breaks for five major oil companies accused of unfairly padding industry profits, according to The New York Times. The measure would have passed if a majority vote was sufficient, but the 52-48 vote fell short of the 60 votes required to end debate.
Even more deplorable developments swiftly came to light. Senate Republicans have blocked the confirmations of a wide range of presidential nominees, prompting two of them to withdraw their nominations. The same GOP senators also refused to reauthorize a 46-year-old economic program which they automatically supported in the past.
On the day after the oil subsidy vote, Reid issued a fundraising e-mail distributed for the Democratic Senatorial Campaign Committee in which he complained: "It's a no-brainer: Big Oil doesn't need taxpayer subsidies. After all, the five largest oil companies raked in profits of $32 billion in the first quarter of 2011 - while Americans are paying four bucks a gallon at the pump. And yet, they continue to collect billions in tax dollar handouts at a time when we need to cut spending.
"It's unfair, and MUST stop. But last night, Republicans derailed a Democratic bill that would end this double-fisted cash grab and save $21 billion."
Another "no-brainer": Big Senate doesn't need a filibuster. Four months earlier, Reid "derailed a Democratic bill that would end this double-fisted" power grab and save us all lots of aggravation.
Merkley was joined in January by Tom Harkin of Iowa and Tom Udall of New Mexico in a bid to "to end this double-fisted" filibuster power
Any senator can filibuster legislation without taking to the floor to make their case, as James Stewart did in the 1939 film "Mr. Smith Goes to Washington." The Senate needs 60 votes to end a filibuster, not a plain majority of 51 votes. The process is called cloture.
The trio pressed for a resolution to require that all senators who
invoke the filibuster must address the legislation on the floor.
Most Democrats voted for the measure, but it could neither get past
the 67-vote barrier nor even a majority vote.
On a typical day, you can compare just about any antics in the Senate to Jerry Seinfeld's Bizarro World. Seinfeld fans should recall that George spoiled their negotiations with NBC to produce a show about "nothing" because he was aggrieved that their $13,000 offer fell way short of Ted Danson's package.
Once the magnitude of his blunder dawned on him, George begged for reconsideration. NBC offered $8,000 this time.
Jerry explained to George that the idea of negotiations "is to get you're price up, not down. This is how they negotiate in the Bizarro World."
Or how Harry Reid negotiates in the Senate.
Reid has worked hard for various causes to benefit the public, but how does it help anyone to hand the Republicans a decisive weapon like the filibuster?
Why? Reid in the past defended the filibuster when Republicans controlled the Senate, and Democratic senators feared losing this device if they return to the minority. Democrats also might have feared that they would be demonized if they curbed or ended the filibuster.
Democrats might have faced some flak in the short term, but they would have ensured themselves a level playing field if they took decisive action against the filibuster.
Reid's negotiating style reflects the operational patterns in the Senate, which can also be known as Bizarro Washington World. You cannot pass a measure with a majority vote, but 41 votes - or 41 percent - is permitted to obstruct legislation?
When Harkin, Merkley and Udall sought to revise the filibuster rule, three of their GOP counterparts intent on retaining the filibuster proved that Jimmy Stewart's legacy for his classic, fictitious filibuster is safe.
The day prior to the debate, Tennessee Sen. Lamar Alexander recited a quote from "Mr. Smith Goes to Washington" at a Heritage Foundation function on Jan. 4, 2011, that the filibuster gives a senator "the right to talk your head off." Alexander lied his head off when he claimed that the Affordable Care Act was "rammed through" the Senate in March 2010. Obama and congressional Democrats repeatedly reached out to Republicans and watered down the law in hopes of ending their filibuster.
Alexander contended that a 60-vote threshold to end debate allows for a "consensus" among senators so that legislation has more broad-based support. The price for this consensus is weakening laws so they provide minimal aid to average citizens and give business interests hefty concessions.
Many jobless citizens received unemployment pay for the next 13 months because Obama acceded to Republican demands in December 2011 to continue tax cuts for the wealthy another two years.
Both Alexander and former Sen. John E. Sununu (New Hampshire) suggested that the Constitution's framers created the filibuster. As Harkin pointed out, the Constitution authorizes each chamber to make its own rules, not establish the rules itself. Their suggestion was made during Alexander's remarks and a Boston Globe commentary written by Sununu.
Pat Roberts of Kansas rambled on for several minutes, recalling that Democrats opposed filibuster adjustments when Republicans controlled the Senate. That must mean that two wrongs make a right.
John Cornyn of Texas crowed that anyone who tries to change Senate rules is "playing with fire."
The filibuster issue surfaced in the public consciousness as Republicans employed the filibuster to obstruct Democratic legislation, particularly the health-care plan and elimination of tax cuts for the rich.
Earlier in 2010, hearings on the filibuster rule were held before the Senate Committee on Rules and Administration. Had Alexander, Roberts and Cornyn followed the proceedings, they would have learned about the Senate where they have served for a combined 30 years.
Sen. Charles Schumer, who represents the third most populous state, chaired the hearings and Sen. Bob Bennett of Utah was ranking Republican. Bennett was subsequently ousted in his own party's primary because he was not conservative enough.
Sarah Binder's testimony cleared up a number of misconceptions about the filibuster. It was certainly not established to give senators "the right to talk your head off." They already had that right.
Binder, then a political science professor at George Washington University, opened with these three points: "Historical lore says that the filibuster was part of the original design of the Senate. Not true. When we scour early Senate history, we discover that the filibuster was created by mistake.
"We often say that the 19th century Senate was a golden age of deliberation. But the golden age was not so golden: Senate leaders by the 1840s were already trying to adopt a cloture rule. But most such efforts to bar the filibuster were filibustered."
She added, "Creation of the cloture rule in 1917 was not a statement of the Senate's love for supermajority rules. Instead, it was the product of hard-nose bargaining with an obstructive minority. Short-term, pragmatic politics shape contests to change Senate rules."
Binder's testimony is accessible on the Web site of the Brookings Institution, where Binder is a senior fellow for Governance Studies.
To paraphrase her testimony and cherry-pick her quotes, both the Senate and the House convened in 1789 with similar rulebooks, which notably authorized a "previous question" motion that empowers a plain majority to end debate. Come 1805, Vice President Aaron Burr critiqued the Senate's rulebook as "a mess. You have lots of rules that do the same thing. And he singles out the previous question motion...In 1805, neither chamber used the rule that way (to end debate). Majorities were still experimenting with it.
"And so when Aaron Burr said, get rid of the previous question motion, the Senate didn't think twice. They got rid of the rule by mistake: Because Aaron Burr told them to."
Deletion of the "previous motion" rule set the stage for creation of the filibuster. The Senate moved apace until its "first real-live filibuster" in 1837.
The Senate experienced few filibusters before the Civil War because "the Senate operated by majority rule; senators expected matters would be brought to a vote; the Senate did not have a lot of work to do in those years, so there was plenty of time to wait out the opposition; and voting coalitions in the early Senate were not nearly as polarized as they would later become."
By mid-century, "the Senate grew larger and more polarized along party lines, it had more work to do, and people started paying attention to it. By the 1880s, almost every Congress began to experience at least one bout of obstructionism: for instance, over civil rights, election law, nominations, even appointment of Senate officers.
"When filibusters did occur, leaders tried to ban them. Senate leaders tried and failed repeatedly over the course of the 19th and early 20th centuries to reinstate the previous question motion. More often than not, senators gave up their quest for reform when they saw that opponents would kill it by filibuster - putting the majority's other priorities at risk. Unable to reform Senate rules, leaders developed other innovations such as unanimous consent agreements. These seem to have been a fallback option for managing a chamber prone to filibusters."
Cloture of filibusters under a two-thirds majority was adopted in 1917 amid painstaking political pressures. Binder testified: "After several unsuccessful efforts to create a cloture rule in the early 1900s, we saw a perfect storm in March of 1917: a pivotal issue, a president at his bully pulpit, an attentive press, and a public engaged in the fight for reform.
"At the outset of World War I, Republican senators successfully filibustered President Wilson's proposal to arm merchant ships - leading Wilson in March of 1917 to famously brand the obstructionists as a 'little group of willful men.' He demanded the Senate create the cloture rule, the press dubbed the rule a 'war measure,' and the public burned senators in effigy around the country.
"Adoption of Rule 22 occurred because Wilson and the Democrats framed the rule as a matter of national security," she testified. "They fused procedure with policy, and used the bully pulpit to shame senators into reform.
"Why did senators select a supermajority rule? A bipartisan committee was formed to negotiate the form of the rule. Five of the six Democrats supported a simple majority rule; one Republican supported a supermajority rule, and one Republican preferred no rule.
"Negotiators cut a deal: Cloture would require two-thirds of senators voting. Opponents promised not to block or weaken the proposal; supporters promised to drop their own proposal for simple majority cloture - a proposal supported by at least 40 senators. The cloture rule was adopted, 76-3."
Concluding that "three lessons" can be drawn, Binder testified, "The history of extended debate in the Senate belies the received wisdom that the filibuster was an original, constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.
"Reform of Senate rules is possible. There are conditions that can lead a bipartisan majority to agree to change Senate rules. The minority has often held the upper hand in these contests, however, given the high barrier to reform imposed by inherited Senate rules.
"The Senate adopted a supermajority rule not because senators were uniformly committed to the filibuster. Senators chose a two-thirds rule because a minority blocked more radical reform. Short-term, pragmatic considerations almost always shape contests over reform of Senate rules."
Binder's recitation and insights are valuable, but we can take issue with her semantics, in which she terms unsuccessful proposals as "radical reform." What's radical is the current rule. Any changes to weaken or eliminate it would best be described as "sensible," "substantive" and "democratic."
In subsequent developments, the Senate voted in 1975 to reduce the proportion from two-thirds to 60 percent, or from 67 to 60 votes.
Democrats were compelled to act more than 90 times to end debate in recent years, according to the NY Times. "The minority has simply been abusing Senate rules," noted 26-year Senate veteran Frank R. Lautenberg of New Jersey.
The House passed a health-care reform bill with the "public option" - to provide federal funds for coverage of the indigent - on Nov. 6, 2009, by a plain majority vote. The Affordable Care Act was signed by the president on March 22, 2010, sans any public option. Republicans in the Senate refused to accept a public option, with cooperation of an independent and a Democrat. The House version would have passed the Senate on a majority vote.
As 2010 drew to an end, Democrats sought to extend unemployment pay for the next 13 months. The price was continuation of tax cuts for the wealthy.
The midterm elections offered genuine hope that Senate Democrats would act to end or curtail the filibuster. They still held a majority and they might determine from hard experience that a change was necessary. Senate rules can be changed by a majority whenever the next session of Congress opens in early January.
After the trouble the filibuster caused President Obama's agenda, it made sense that the surviving Democratic majority would change the Senate rules applying to the filibuster at its first opportunity.
Schumer's hearings on Senate rules signaled that Democrats might move on the filibuster and other rules.
Possibly the Democrats' first inclination was to amend the filibuster process to ensure that it does not obstruct legislation in any acute way. The filibuster might block movement for a short amount of time, but otherwise it would not prevent an up-or-down majority vote on a given measure.
Democrats probably feared that any change in Senate rules would provoke criticism, especially from Republicans. So what? The Republicans are on the attack no matter what the Democrats do. The idea of amending rather than ending the filibuster would limit political fallout.
If Democrats would not act against the filibuster and other Senate rules, they would pay for their omission every time they introduce a bill or the president nominates someone for a White House position or judicial seat.
Norman Ornstein, resident scholar at the American Enterprise Institute, offered this proposal in a NY Times op-ed Aug. 28, 2010: "The Senate could replace the majority's responsibility to end debate with the minority's responsibility to keep it going.
"It would work like this: for the first four weeks of debate, the Senate would operate under the old rules, in which the majority has to find enough senators to vote for cloture. Once that time has elapsed, the debate would automatically end unless the minority could assemble 40 senators to continue it."
Ornstein emphasized that the filibuster is useful, and his proposal would allow the filibuster to be put to proper use without being abused. "It gives the minority party the power to block hasty legislation and force a debate on what it considers matters of national significance," he wrote.
So on Jan. 5, 2011, the first day of the Senate session, Sens. Udall, Merkley and Harkin merit credit for a serious attempt at altering obstructive Senate rules. They proposed elimination of anonymous holds on legislation and presidential nominees, and the mandate that any senator threatening a filibuster must physically argue their case on the floor. Presumably, the minority party might assign senators to rotating shifts.
News coverage of the opening skirmishes was skimpy, but fortunately I caught much of the debate on C-span. TV hosts Keith Olberman and Rachel Maddow did not let the issue escape their notice.
The Udall plan addressed Republican concerns about allowing debate and inserting amendments to legislation.
The proposal did not ensure that debate will end. Practically speaking, neither individual senators nor a bloc of senators will expend an unlimited amount of time for genuine filibustering. Independent Sen. Bernie Sanders of Vermont only lasted nine hours during a lengthy appearance on Dec. 10, 2011, to oppose continuation of the tax cuts for the wealthy. However, one never knows.
The measure should impose a deadline, one that permits a reasonable amount of time to permit ample debate.
There has been predictable speculation that Team Udall did not go further for fear that it would sound like a Democratic takeover.
Chances for any meaningful change then were unpredictable. More than 50 senators petitioned for a change, but some had different ideas as to how to effect change. Thirteen senators reportedly proposed the Udall plan.
At the same time, Reid and McConnell privately negotiated a compromise.
Debate over the filibuster was continued to Thursday, Jan. 27, the next day of the session. Actually, this officially meant prolonging the first day of the session to the 27th. Some pundits snickered that Reid miraculously stretched a 24-hour day to 528 hours.
This recalls a classic scene from "Inherit the Wind" in which Spencer Tracy, playing a lawyer defending an educator charged with teaching evolution, asked rival attorney Frederic March if the first day of the world's creation was a calendar day, a 25-hour day or a few million years.
So, 528 hours later Harkin appealed to his colleagues to choose from different resolutions as part of a package to curb the filibuster. Each resolution to alter the rules had to receive 67 votes, two-thirds of the Senate membership. Harkin especially protested this 67-vote barrier.
Merkley, Harkin and Udall together pressed for a resolution to
require that all senators who invoke the filibuster must address the
legislation on the floor. Most Democrats voted for the measure, but
it could neither get past the 67-vote barrier nor even a majority
Harkin quixotically introduced a bill permitting a majority to end a filibuster - the Senate's original rule from 1789. It was rejected by a 12-84 vote.
"The framers were very clear about where a supermajority can be used," Harkin told his colleagues during the debate, televised on C-span. "The first Senate allowed the majority to bring it (legislation) to a vote...We have to be able to react a little faster than we did in the 19th century...We cannot govern a superpower when a minority can dictate..."
He continued, "The power is not what we can do but what we can stop," he said. "What I fear is that this Senate will continue to be dysfunctional...The American people will get more frustrated."
Harkin's bill was co-sponsored by Richard J. Durbin of Illinois;
Barbara A. Mikulski, Maryland; and Jeanne Shaheen, New
Hampshire. Also voting for the measure were Udall, Mark Begich,
Alaska; Richard Blumenthal and Joseph I. Lieberman, both of
Connecticut; Kirsten E. Gillibrand, New York; John F. Kerry,
Massachusetts; Herb Kohl, Wisconsin; and Frank R. Lautenberg,
However, the Senate overwhelmingly passed two bills to forbid
any senator from placing an anonymous hold to block a bill or a
nomination and to read lengthy amendments, which has been
employed as a stalling tactic.
The filibuster's fate depended on the gentlemen's agreement reached between Reid and McConnell.
Harkin warned of a legal challenge, saying, "We must now have to look at the courts to find some relief in this matter...I quite frankly think a case can be made to the courts."
At this writing, no legal challenge has been launched.
The filibuster to block elimination of tax breaks for major oil companies was no fluke. Other filibusters came to light in short order.
Berkeley law professor Goodwin Liu won 52 votes on May 19, 2011, to end debate on his nomination to the U.S. Court of Appeals for the Ninth Circuit based in San Francisco, but only 43 votes were sufficient to continue the filibuster. Republicans objected to his record and his previous opposition to GOP Supreme Court nominees, according to The Washington Post.
Last year, the Senate Judiciary Committee approved Liu's nomination on a party-line vote, but there was never a floor vote. Obama renominated him, but his confirmation vote was held up by the filibuster.
Sen. Richard J. Durbin of Illinois, the second-ranking Democrat, charged that Republicans had conspired to keep major judicial vacancies open as long as possible in hopes that they will be filled by a Republican president after the 2012 elections, according to the Times.
Liu, who teaches at the University of California's Berkeley campus, wrote in a May 25 letter to Obama that he and his family need "to make plans for the future...It is now clear that continuing my nomination will not address that need any time soon."
After a 14-month wait, Nobel Prize laureate Peter A. Diamond withdrew his nomination for a seat on the Federal Reserve Board of Governors. Diamond, an economics professor at the Massachusetts Institute of Technology, wrote in a June 6 New York Times op-ed, "We should all worry about how distorted the confirmation process has become, and how little understanding of monetary policy there is among some of those responsible for its Congressional oversight."
He added, "Understanding the labor market - and the process by which workers and jobs come together and separate - is critical to devising an effective monetary policy."
Sen. Richard C. Shelby of Alabama, senior Republican on the Banking Committee, told the Times, "It would be my hope that the president will not seek to pack the Fed with those who will use the institution to finance his profligate spending and agenda."
Diamond was under fire for publicly backing a continuing Fed program to stimulate growth by buying $600 billion in Treasury securities, the Times reported. Shelby has called this a backdoor means of lending the government more money.
Diamond's withdrawal was part of a familiar pattern which in this instance obstructs confirmation of nominees to restrain Obama's economic policies on such issues as housing, finance, foreign trade and offshore drilling.
The Times reported that a group of 44 Republicans demanded that free trade pacts with South Korea, Panama and Colombia must be concluded before they would confirm a commerce secretary or any other trade official. They also called on Democrats to eliminate the position of the head of the new Consumer Financial Bureau and curtail the agency's powers.
Three Republicans with intriguing credentials have held up the confirmation of Obama's nominee to head the Fish and Wildlife Service:
- David Vitter of Louisiana, whose phone number was fund in the records of a prostitution service, set conditions that the government grants 15 permits for deepwater drilling, which the administration has done;
- Mike Lee, a tea partier who ousted the incumbent during the 2010 GOP primary in Utah, demanded that the Interior Department release certain documents, to which the administration agreed;
- John Barrasso, who represents the least populous state, has sought a review of the protected status of wolves.
Sen. Barbara Boxer of California on June 7, 2011, advocated for passage of a bill to reauthorize the Economic Development Administration which "assists some of America's hardest hit areas and revitalizes communities across the nation by leveraging investment."
Her statement on the Senate floor adds, "EDA provides a wide range of assistance to economically underserved communities, such as funding for water and sewer improvements, and helping manufacturers and producers become more competitive in a global marketplace."
The program, launched nearly 50 years ago, funded public-private projects since January 2009 "that grantees estimate have created 161,500 jobs and saved nearly 45,000 jobs."
Yet on June 16, Boxer and Reid announced that Republicans flooded the bill with nearly 80 irrelevant amendments, prompting
Reid to begin the process to invoke cloture, "It is filibuster by amendment," Reid said on the floor in proceedings broadcast by C-span.
Boxer, who represents 36.9 million Californians, pointed out that past supporters of NDA were among the amendment sponsors, including Thad Cochran of Mississippi, population 2.9 million; Mike Crapo (Idaho, 1.5 million) and Susan Collins (Maine, 1.3 million).
The EDA bill received 51 votes the following week, on June 21, but of course a majority vote was not sufficient to end cloture. Had the majority of the Senate curtailed the filibuster when they had a consummate opportunity, 51 votes would have been sufficient for passage.