December 9, 2012

Maine Voices: Finesse needed for filibuster reform

The real danger is not what's been proposed, but how reformers seek to make those changes.

By RICHARD A. ARENBERG

This week, in his strongest statement yet, Senate Majority Leader Harry Reid declared, "We're going to change the rules." Maine's senators are poised to play a pivotal role.

Jimmy Stewart filibusters in “Mr. Smith Goes to Washington.” In recent years, senators have abused their right to filibuster.

Reid is referring to reforms to the filibuster rules that have served as the guarantor of the Senate's unique role in balancing minority rights with majority rule. Speech is unlimited and amendments are unfettered. By contrast, in the House debate is strictly limited and often no amendments are permitted.

In recent years, the right to filibuster has been abused. This has been a trend, but in the Obama years, the minority has taken this tactic to new extremes. Historically, senators protected this crucial right by using it rarely. Now it's used to obstruct virtually everything.

The frustration has boiled over. Reid has demanded mostly reasonable reforms. Firstly, ending filibusters on the motion merely to begin consideration of a bill. Secondly, prohibiting filibusters on the steps necessary to go to a House-Senate conference. The third would require senators seeking to filibuster to debate the issue they are blocking.

These changes are moderate and would reduce the number of filibusters occurring, but would protect minority rights in the Senate. The first two are sensible, eliminating many filibusters designed only to obstruct, while preserving the filibuster on substantive matters.

The third suggestion is intuitively appealing. The new rule, however, would not likely have the desired effect. The attrition strategy works on "lone wolf" filibusters conducted by one senator or a few, but when it is the entire minority, it becomes merely a scheduling exercise. If it worked, majority leaders would do it more often. They can under existing rules.

The real danger is not what's been proposed, it is how reformers seek to make those changes. They plan to use a controversial procedure some call the "constitutional option." This is a parliamentary maneuver based on the assertion that Senate rules can be altered by a majority vote on the first day of a new Congress.

This is sometimes characterized as an existing Senate rule -- which it is not. For it to succeed, the vice president must ignore Senate rules and the advice of the parliamentarian. In effect, he must break the rules to change them. If Vice President Biden is willing to do this, he could rule that debate can be ended by a majority. In 2005, when Republicans threatened to do just that, Democrats threatened a huge reaction, thus the "nuclear option." Sen. Biden declared, "This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party."

Once the precedent is established that a majority can change the rules, the outcome is inevitable. Majorities will do what they do. They will before long establish firm control over the legislative process. Majority rule would trump all. The Senate would be diminished to a shadow of the House.

No senator is calling for the elimination of the filibuster. The reformers acknowledge that it protects minority rights and promotes negotiation and compromise. It also protects the rights of smaller states like Maine.

The rules can be reformed without destroying the fundamental character of the Senate, but it must be done by a bipartisan supermajority. Maine's senators are critical. The 2005 "nuclear option" crisis was resolved by a "Gang of 14" who negotiated a compromise and sealed it with a handshake. Their numbers ended the minority's filibustering of most judicial nominations and the majority's ability to use the "nuclear option." Maine's Sens. Olympia Snowe and Susan Collins were prominent members that group.

Again Sen. Collins and this time Sen.-elect Angus King can play pivotal roles. There are 55 Democrats (and independents). The majority-vote tactic requires 50 votes to ratify the vice president's ruling. A number of Democratic senators oppose that radical step and are seeking compromise. King, while strongly supporting filibuster reform, has wisely left open the question of what he might do on the "nuclear option."

Sen. Collins has indicated her opposition, but has a long record of compromise. One possibility would be a new "gang." Twelve senators, six from each party, could agree to reasonable reforms in exchange for denying the majority the votes necessary for the "nuclear option."

Preferable however are real negotiations among senators with the best interests of the Senate and the nation in mind, leading to a bipartisan compromise which could garner the two-thirds support to make moderate changes.

Such bipartisan negotiations are occurring in the Capitol. Let us hope that Sens. Collins and King join this effort.

Richard A. Arenberg, co-author of “Defending the Filibuster: The Soul of the Senate,” is a former Senate staffer who worked for Maine Sen. George Mitchell and others. He teaches at Brown University.

 

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