The Senate may be dark and empty until the new Congress opens in January, but that hasn’t stopped a group of progressive Democrats from building grassroots support for an anticipated try at filibuster reform on the first day of the 112th Congress.
Progressive Democrats of America (PDA) on Tuesday emailed supporters asking them to push their senators to support the so-called “constitutional option” aimed at making it more difficult for minority Republicans from wielding the filibuster as a tool of obstruction.
“The Senate has become the place where legislation passed in the House—even legislation with bipartisan support—goes to die,” says the email, from PDA National Director Tim Carpenter. “On January 5, the first day of the new term, we may witness the most important Senate vote of this century. Senators will decide if party loyalty is more important than doing the work of the people when they vote on changing the filibuster rule, which currently allows for this kind of abuse.”
Carpenter’s email includes a graph that charts the dramatic increase in the use of the filibuster by the Senate GOP in recent years to block, even if temporarily, much of the Democrats’ agenda.
Carpenter also cites polls from this year which find Americans support filibuster reform.
“Changing this rule could change the public’s view of Congress, which is at an all-time low,” Carpenter says. “The American people want action and they’re not getting it because of the political posturing that the current filibuster rule encourages.”
Republicans have used the filibuster, which requires a 60-vote supermajority to overcome, to obstruct almost all of the legislation put forward by Majority Leader Harry Reid (D-Nev.) and his fellow Democrats.
Democratic Sens. Jeff Merkley of Oregon and Tom Udall of Colorado are leading a charge to make it more difficult to filibuster legislation supported by a majority of senators. The first step in that reform will be allowing the Senate to change its rules on the opening day of the 112th Congress by a simple majority, rather than a two-thirds margin. Supporters refer to this change as the “constitutional option.”
“Senate rules are supposed to allow for substantive debate and to protect the views of the minority – as our founders intended. Instead, they are abused to prevent the Senate from ever voting on critical legislation. The Senate must adopt rules that allow the institution to work for the middle class,” Udall says in a statement on his website, noting that he intends to make a motion on the floor of the Senate at the start of the new term to take up and adopt its rules by a simple majority vote.
Republicans used the filibuster to delay such legislation as the repeal of the ban on gays serving openly in the U.S. military and food-safety reform, although Democrats ultimately won approval for those initiatives. GOP senators used the filibuster to effectively kill other bills, such as climate change regulation, immigration reform, and bills to force more accountability on BP for its Gulf Coast oil spill earlier this year.
Anticipating opposition from Republicans, supporters of filibuster reform and the constitutional option have amassed research including quotes from prominent Republicans going back as far as Richard Nixon who voiced past support for Senate rules to be changed by a simple majority of senators.
Reform supporters also cite the late Sen. Robert Byrd (D-W.Va.), a Senate scholar and fierce defender of Senate prerogatives, as supportive of the type of change they seek.
Byrd, they say, once argued on the Senate floor: “There is no higher law, insofar as our Government is concerned, than the Constitution. The Senate rules are subordinate to the Constitution of the United States. The Constitution in Article I, Section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past. The first Senate, which met in in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . time . . . . [T]he Members of the Senate who met in 1789 . . . did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate.”
Vice presidents of both parties, sitting as president of the Senate, have made advisory rulings that at the beginning of a Congress the Senate is not bound by the rules of its predecessors and has the constitutional right to adopt its rules of procedure by a simple majority vote, reform supporters say.
Therefore, the Senate of the 112th Congress is not bound by the provision in Rule XXII that requires two-thirds of senators to end a filibuster on a rules change, they say. The next Senate can limit debate and reform the rules by a simple majority, they contend.
The publisher of the news site On The Hill, Scott Nance has covered Congress and the federal government for more than a decade.