The Surprising Truth About Senate Obstructionism
OPINION | June 3, 2012By BRIAN REARDON And ERIC UELAND
There's a growing chorus complaining that the Senate is broken, that Republicans are to blame, and that the rules of procedure need to be changed. This argument has any number of flaws, but at its core it relies on a general misrepresentation of how the Senate, and the filibuster in particular, works.
For example, here's how Politico's congressional reporter Scott Wong characterized the situation as part of a recent story on a lawsuit brought against the Senate by Common Cause to declare the filibuster unconstitutional:
"From 1981 to 2006, both parties used the filibuster when they were in the minority. During that period, the majority party in each Congress filed fewer than 90 cloture motions to overcome a filibuster by the minority.
"But since Democrats seized power in fall 2006, Republicans have turned to the filibuster far more frequently. The majority has averaged about 140 cloture motions in both the 110th and 111th Congress. And Democrats are on pace to repeat that feat again this Congress."
So Republicans are to blame for all those cloture petitions to end filibusters, right? Wrong. The fact that the majority has filed so many cloture petitions is as much a symptom of its own efforts to block the Senate from working its will as anything the minority has done. Consider this example.
On March 19, Robert Menendez (D., N.J.) introduced legislation (S. 2204) to promote renewable energy with the cost offset by a tax hike on large oil producers. The normal process would have been for this legislation to be referred to committee for action.
Majority Leader Harry Reid bypassed the committee process, however, and using something called Rule 14 had the bill placed directly on the Senate calendar. Two days later, he started the process to call up the bill by moving to "proceed to it" and immediately filed a cloture petition to end debate on that motion.
The following Monday, the Senate then voted 92-4 to curtail debate on the motion to proceed to the bill. The next day, as soon as the bill was before the Senate, Mr. Reid offered five consecutive amendments and one motion in order to effectively block the consideration of any competing amendments or motions.
He then filed a cloture motion to close out debate on the bill. Two days later, the Senate rejected cloture on a party-line vote and moved on to other business, leaving the Menendez bill adrift.
Now go back to the Politico story and ask yourself how exactly Republicans filibustered this bill? They didn't have time to filibuster anything, it was over so quickly. Moreover, their ability to take meaningful action was effectively nullified by four specific parliamentary maneuvers taken by Mr. Reid.
Why does the majority go to all this trouble? The simple answer is to protect its members from tough votes.
The Senate is a wide open forum where almost any issue can be raised and voted on at almost any time. This environment is a function of the Senate's tradition of unlimited debate, but it does leave members vulnerable to having to vote on difficult issues at inconvenient times, like when they are up for re-election.
In response, Majority Leader Reid has adopted the practice of blocking amendments from being offered. No amendments, no surprises, and no tough votes.
Taken alone, Sen. Reid's actions on S. 2204 are not historically unique. Every recent majority leader has used them on occasion. But what used to be relatively rare has been repeated dozens of times in recent years.
The very first bill considered by the Senate after the election of President Obama and a filibuster-proof Democratic majority was adopted under exactly the same truncated process used for S. 2204—Rule 14, cloture, block out any competing amendments, cloture. Since that time, the Senate has voted on cloture repeatedly, yet has very little to show for it: By some measures, 2011 was the least productive session in modern congressional history.
So where does that leave us?
Lawsuits like the one filed by Common Cause are frivolous public-relations efforts and will be rejected by the courts—the Constitution grants the Senate the right to craft its own rules, after all. But the possibility that the Democratic majority, threatened at the polls and frustrated by the current legislative stalemate, will move to change long-standing Senate rules to further limit debate and make it harder for senators to offer amendments on behalf of their beliefs is very real and must be strenuously opposed.
As we have seen, any systematic effort to block amendments, short-circuit debate, and force a preordained outcome turns the Senate into a legislative dead end. The salutary news is that on bills where the Democratic majority actually worked with the Republican minority to respect their rights to help craft bills and to debate and propose amendments, the Senate has been able to work its will and pass legislation—for example, the recent reauthorization of the Food and Drug Administration's user-fee program.
The Senate is the most uniquely American of all our federal institutions. It is a powerful and proud body that has protected us and our freedoms for more than 200 years. In order to work properly, however, senators must have their freedom too—the freedom to debate and offer amendments and, ultimately, vote. That is what they were elected to do, and that is how the Senate should work.
Mr. Reardon is a principal at Venn Strategies, and served on the National Economic Council under President George W. Bush. Mr. Ueland is vice president of the Duberstein Group and was chief of staff to former Senate Majority leader Bill Frist.