CQ WEEKLY – IN FOCUS
Dec. 8, 2012 – 3:25 p.m.

More Than One Way to Gum Up the Senate

By Niels Lesniewski, CQ Staff

Does the Senate face nuclear winter if Majority Leader Harry Reid deploys the “nuclear option” to tighten the filibuster rule and block other delaying tactics? That appears to be a decided risk.

ENOUGH IS ENOUGH: Reid’s repeated vows to make the Senate more efficient alarm Republicans. (BILL CLARK/CQ ROLL CALL)

At the urging of liberal Democrats, Nevada Democrat Reid has been openly toying with the idea of changing Senate rules in January by embracing a constitutional interpretation that would require only a majority vote at the beginning of a new Congress, rather than the two-thirds supermajority in current rules. Opponents have referred to that tactic as “nuclear” at least since Republicans discussed using it in 2003 to prevent filibusters on President George W. Bush’s judicial nominations.

Today’s Republicans, now in the minority, are being coy about how exactly they would react to such a unilateral rules change, but they warn it will be bad. Utah Republican Mike Lee, a Senate newcomer and favorite of the tea party movement, says the result may not be predictable.

“There definitely would be a reaction, and yes, that would be inevitable,” Lee says. “I’m not going to tell you what the reaction is, in part because I don’t know, but I can tell you it will be swift, it will be strong and it will be in proportion to the severity of what Sen. Reid is trying to do. We will react, we will respond, and he’s not going to like our response.”

Democrats say changes to the filibuster rules they are discussing are narrow in scope and rooted in common sense. But Republicans warn that a future Senate majority might use the same strategy to trample minority rights, perhaps even to do away with the filibuster altogether.

Senators from both parties would like to avoid a confrontation and hope that a compromise can be reached.

Otherwise, senators and their aides will be leafing through seldom-referenced or exploited sections of Riddick’s Senate Procedure, a kind of bible of chamber operations, to find new ways to bring the chamber to a halt.

Metzenbaum at the Gates

In recent years, senators have largely followed a tried and true pattern when they want to delay or obstruct, including blocking action on legislation and nominations, forcing 60-vote, filibuster-proof thresholds to move forward on any and all parts of an agenda item and refusing to let committees meet for more than a short period, to name a few.

Reid is threatening to take one of those options away by disallowing a filibuster on the motion to proceed to a bill, but opponents can turn to other tricks of the trade.

When it comes to stalling chamber business, no current senator rivals Sen. Howard Metzenbaum. During the 1980s, the Ohio Democrat had a standing objection to any floor business, regardless of which party was in charge, and demanded that leaders clear all requests with him in advance. Metzenbaum even stationed an aide on or near the Senate floor to alert him in case of unexpected unanimous-consent requests. Traditionally, the majority and minority leaders are the gatekeepers of such requests, and objections are supposed to flow through them.

“Metzenbaum was restless, but he also exhibited skill, guile and pure endurance, which enabled him to work effectively in a body run by Republicans,” journalist Tom Diemer wrote in a 2008 biography.

More Than One Way to Gum Up the Senate

At the staff level, GOP aide Martin B. Gold wrote a book on Senate procedural exploits, last revised in 2008. During a 2003 oral history interview with current Senate Historian Donald A. Ritchie, Gold noted Metzenbaum’s mastery of Senate operations.

Gold recalled traveling to Alaska to discuss rules changes with Republican Sen. Ted Stevens, who was seeking the post of party leader. Stevens wanted to change the rules to stop Metzenbaum, whom Stevens was widely reported to have called “a pain in the ass.” So, Stevens and Gold discussed how the rules might be changed to thwart a single senator.

“He would raise an idea, and I would say, ‘If you do X, Metzenbaum can do Y.’ So he came up with another idea. ‘Well, if you do A, Metzenbaum can do B.’ We went back and forth on this thing and it got more and more complicated as he tried to tie down loose ends,” Gold said. “As he was doing it, my attitude was: ‘You’re tying down Metzenbaum, but you’re going to be tying down everybody else too.’”

Morning Shenanigans

Whether another Metzenbaum might arise from the aftermath of a unilateral rules change remains a hypothetical question. Several political scientists whose work focuses on the Senate’s rules recently offered their opinions at The Monkey Cage blog.

“It’s very hard to predict the consequences of changes to Senate rules. Why? Because most of the time, senators do not fully exploit the chamber’s formal rules. They don’t have to,” writes George Washington University political science professor Sarah Binder. “A new rules regime — particularly one curtailing the right of extended debate under Rule 22” — the filibuster rule — “could encourage senators to aggressively avail themselves of every procedural avenue in the Senate rule book for obstructing the Senate,” Binder writes.

One way to gum up the works would be to challenge the use of the formal “morning hour,” a period at the opening of each legislative day (which isn’t the same thing as a calendar day) that is reserved for routine, minor business. In a 1987 case examined by Steven S. Smith, a Senate rules expert at Washington University in St. Louis, Majority Leader Robert C. Byrd tried to exploit the morning hour to call up a controversial defense authorization bill. The West Virginia Democrat brought the Senate to the start of a new legislative day to employ a procedural quirk that permits a motion to proceed to a bill to come to a vote without threat of a filibuster. Prolonging debate on such motions is a favorite tactic for blocking a bill from the floor.

Byrd appeared poised to get away with it, but quick-thinking Republicans slowed the Senate to a crawl with a series of interlocking roll call votes on whether or not to allow senators to refrain from voting on other matters.

“With follow-up parliamentary maneuvers, morning hour expired without the motion to proceed being offered,” Smith wrote on the blog. “Some version of the 1987 tactics probably would work again.”

Clay Pigeons at Risk

The package of rules changes being pushed by Democrats would leave many opportunities for any senator to filibuster legislation or amendments, just not as many openings. Senators also are eyeing many of the other maneuvers they have used to secure concessions or delay action in recent years.

For instance, Senate Rule 26 bars committees from holding meetings beyond the first two hours of the day or after 2 p.m. without consent. During a disagreement last year about the timing of a Finance Committee markup of trade agreements, Minority Leader Mitch McConnell of Kentucky delayed consideration by invoking this rule.

Oklahoma Republican Sen. Tom Coburn has used other procedural moves, such as offering “clay pigeon” amendments that divide into many individual pieces and theoretically require separate votes for each one. Coburn hasn’t tried this action often, perhaps to preserve the element of surprise, and Reid has become more adept in preventing him from using it in recent years.

More Than One Way to Gum Up the Senate

Republicans contend they must use procedural ploys — such as requiring Reid to find 60 votes for motions to proceed — to preserve the right of the Senate minority to offer amendments.

“I know this unprecedented power grab makes even many Democrat senators uneasy,” Iowa Republican Sen. Charles E. Grassley said on the floor last week. “Other Democrats who find this proposal tempting, but who have not yet served in the minority, will find they have a rude awakening once they have to live under the new regime they seek to create.”

Reid eliminated one time-consuming move last year, preventing the minority from offering motions to suspend the rules after cloture has been invoked.

Although some Republicans called the move “nuclear,” no explosion of minority obstruction ensued.

Indeed, some liberal groups that advocate for a rules change say the proposals are too narrow for Republicans to retaliate against. The groups include Fix the Senate Now, a left-leaning coalition of environmental groups, legal interest organizations and labor unions.

“The proposed Senate reforms are deserving of Republican support, not threats,” said George Kohl, senior director of the Communications Workers of America, in a statement. “The likely package of reforms are sensible in nature, protect the rights of both the majority and minority, and would help the Senate prioritize deliberation over obstruction. The Republican threats of retribution are simply not commensurate with what what’s being proposed.”

But Republicans are on high alert, even on the other side of the Capitol. House Speaker John A. Boehner of Ohio announced Nov. 29, “Any bill that reaches a Republican-led House based on Senate Democrats’ heavy-handed power play would be dead on arrival.”

FOR FURTHER READING: Reid views, CQ Weekly, p. 2212; cloture fight, 2011 Almanac, p. C-12; prior proposals, 2011 CQ Weekly, p. 260; rules change, 1987 Almanac, p. 87.