Since returning to power in the 110th Congress, Democrats have grappled not only with hyper-partisan gridlock on Capitol Hill — and a Republican minority adept at winning tactical advantages. They also have struggled to find consensus among themselves in the slog to move legislation to the president’s desk.
Democrats in both chambers have laid blame for their limited list of legislative accomplishments on the Senate’s rules, which demand consensus to execute most actions — a trait that was severely lacking in 2007 between the two parties.
Former Senate Parliamentarian Bob Dove said the legislative process in the Senate hasn’t changed very much — rather, the way in which the majority and minority parties tried to use the chamber’s rules to their respective advantage evolved over the past year.
“You can’t ignore the minority,” Dove said. “The Senate functioned when [Senate Minority Leader Mitch] McConnell [R-Ky.] agreed it should.”
Dove cited the Republican minority’s increased willingness to block the appointment of conferees — thus preventing House- Senate conference committees from finalizing bills — along with the Democratic majority’s increased use of cloture motions to cut off potential filibusters. Sixty votes are needed to invoke cloture and end debate on a bill or pending motion.
Dove said the practice of objecting to conference committees is relatively new, even though the rules have always allowed it.
In response, Senate Majority Leader Harry Reid (D-Nev.) could have filed for cloture on the three debatable motions needed to appoint conferees each time the GOP blocked a bill. Instead, House and Senate Democratic leaders opted for a legislative route they could more easily control — a process in which they pingpong bills, or amendments, back and forth between the chambers.
“There’s no question that amendments between the houses has been used more than it has in the past, but that’s because Senators blocking them from going to conference has happened more often,” Dove said. “It used to be that once it got to the conference stage, nobody said anything.”
Republicans said they used the tactic to protect their rights in the chamber.
“They’ve repeatedly tried to duck going to conference instead of trying to work with Republicans,” said one former Senate GOP leadership aide.
Many House Democrats have criticized the pingpong because it effectively replaced the conference committee as the routine on major legislation such as the recent energy package and children’s health care bills. They contend it has weakened their chamber’s position in negotiations. Regarding the children’s health insurance bill, House Ways and Means Chairman Charlie Rangel (D-N.Y.) asserted in early October that the House had been “cut off at the knees.”
“If we don’t go to conference, there’s no need for us to legislate on anything really,” Rangel said at the time.
The process also appeared to hamper Democrats’ ability to agree among themselves on key issues in 2007, with the House repeatedly passing bills that Senate leaders warned would be filibustered by Republicans.
House Democratic leaders sent two different versions of their alternative minimum tax legislation to the Senate — both with offsets that Senate Republicans strenuously opposed. In both cases, the Senate rejected the measures, and the House was forced to pass an AMT bill that was not paid for by revenue increases elsewhere.
House Republicans complained that pingponging legislation cut their own lawmakers out of the regular process in which conferees are appointed to hash out differences between the chambers. Instead, House and Senate leaders pushed identical bills through their respective chambers while blocking any new amendments.
“The conference committee process serves to allow Members to buy into a final bill,” said Antonia Ferrier, spokeswoman for House Minority Whip Roy Blunt (R-Mo.). “Sometimes there are tweaks and changes that have to be made, but it allows buy-in. ... Absent that kind of process, you’re really getting a majority-driven bill without bipartisan support.”
She added: “When you isolate yourself so far away from real debate ... your product is not going to be as strong or as good.”
Minority Rights or Obstruction?
Democrats say many of the problems in 2007 can be blamed on what they’ve termed the Senate GOP’s “obstructionism,” which Democrats believe they’re pursuing for partisan reasons.
“Democrats have been in the minority. We understand the principles of minority rights, of sticking up for the Constitution. But the Bush Republicans over the past year have thrown the whole concept of minority rights on its head,” said one senior Senate Democratic aide. “This isn’t about Senatorial privilege or protecting the rights of the minority. This is about carrying water for the president and obstructing every piece of legislation for political gain.”
Specifically, Democrats have singled out Senate Republicans’ penchant for objecting to the majority’s attempts to set the agenda of the chamber by trying to filibuster motions to proceed to legislation.
“There’s no reason to have cloture on a motion to proceed unless you just want to delay and block,” said the senior Senate Democratic aide.
This aide blamed much of the gridlock in the chamber on a handful of Senate Republicans, including Sens. Jim DeMint (S.C.) and Tom Coburn (Okla.) — both of whom previously served in the House.
“There are a lot of Senate Republicans who are former House Members who came up during the [Republican] revolution [of the 1990s], where everything went and decorum was a four-letter word,” the aide said. “That being said, Mitch McConnell should know better. He’s a creature of the Senate. And for him to allow the DeMints and Coburns to control the direction of his caucus raises questions as to his leadership, especially when we know there are many moderate and old-school Republican Senators who don’t want to play these games.”
In fact, there were many instances in 2007 where Republicans rejected unanimous consent agreements to start debate on a bill, but after days of delay, voted en masse for the motion to proceed to it. At other times, Republicans banded together until Reid either agreed to set artificial 60-vote thresholds for passage or promised to hold votes on amendments near and dear to the GOP’s heart.
Senate Republicans said they forced Reid to file cloture 68 times last year — a new Senate historical record — because they were protecting their right to offer amendments or they felt the legislation was fatally flawed. (Reid also filed cloture on a terrorist surveillance bill in an attempt to get around a Democratic-led filibuster.)
In 2007, McConnell often repeated his mantra that everything in the Senate takes 60 votes and excoriated the Democrats for pursuing what he described as a partisan agenda that permitted little minority input. And at the end of last year, McConnell counted his party’s attempted and successful filibusters among its key accomplishments.
Although the minority in the House has traditionally wielded little power, Republicans have sought to similarly exercise influence in that chamber.
The minority has relied in large part on the impact it can make with motions to recommit, a procedural maneuver that allows the minority to offer amendments to legislation immediately before a bill moves to final passage on the House floor.
Working from a strategy developed by GOP leaders during a late December 2006 retreat, House Republicans have focused on forcing difficult votes from Democratic lawmakers, particularly vulnerable freshmen, on issues ranging from gun ownership to immigration.
Although ranking committee members may propose several options, the motions brought to the floor are ultimately selected by GOP leaders.
“The way Democrats did it, they didn’t really use it as a political weapon,” said Kevin Smith, spokesman for House Minority Leader John Boehner (R-Ohio). Smith added, “Everyone now agrees it’s been a brilliant strategy to make Democrats take tough votes and it’s been a huge morale booster for our Conference.”
Although Republicans won nearly two dozen votes on such motions — and on others wrangled control of the House floor, temporarily delaying votes on a Congressional seat for the District of Columbia and renewal of the Foreign Intelligence Surveillance Act — Democrats largely dismiss those efforts, noting no major legislation has been halted.
“Republicans haven’t had any victories substantively or politically on motions to recommit,” said Stacey Farnen Bernards, spokeswoman for House Majority Leader Steny Hoyer (D-Md.).
She asserted that leadership’s decision not to try to enforce an outright ban on Democrats’ voting in favor of the GOP motions was a tactical move to circumvent potential 30-second attack ads. She said supporting such motions occasionally gave political cover to some rank-and-file Members.
Nonetheless, since late March, Democratic leaders have considered several efforts to curb the motion to recommit but ultimately have not followed through.
House Rules Chairwoman Louise Slaughter (D-N.Y.) in late December said she anticipated that the House will consider a package to amend the chamber’s internal rules in the second half of the 110th Congress, but she said she did not foresee any changes to the motion-to-recommit procedure.
“Obviously the most glaring thing everybody talks about is the motion to recommit,” Slaughter said. “But honestly, we lost control of the floor.”
The Accidental Rule
Meanwhile, Senate Democrats inadvertently made it harder to wrap together the annual spending bills in an omnibus package, as well as to add extraneous issues to bills in conference.
In what was intended as a rule change to prevent unvetted earmarks from being “airdropped” into bills during conference committee, Senate Democrats last year approved a change to Rule 28 allowing such provisions to be stripped out of the bill without killing the overall measure. Though it was meant to be narrowly targeted, the rule also makes it harder for the majority to cobble together appropriations bills, if it’s attempted in conference committee.
Rule 28 always has prohibited the Senate from dropping provisions into conference reports that were not included in either the House- or Senate-passed versions, but objecting to such practices effectively killed the conference report in the past. Now, Senators can object to specific provisions and, if there are not 60 votes to override it, the offending language will be stripped out.
In the first test of the new rule last fall, Senate Republicans successfully stripped out a Veterans Affairs spending bill that had been added to the Labor, Health and Human Services, and Education appropriations bill. Democrats had hoped that coupling veterans spending with increased funding for their key priorities would help them either avert a veto or enable them to override it. But President Bush was able to simply veto the stand-alone labor bill.
Though Democrats suffered a defeat on the rule, the former Senate GOP leadership aide said the majority could use the rule to its advantage by forcing votes on politically tricky issues that might otherwise be too time- consuming to deal with in regular order.
“It enhances the temptation of the majority to stick in unrelated items as political votes,” said the aide, explaining that knowing the provision would be struck without endangering the underlying bill could be a powerful incentive.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.