Talk about your longest day. Under Democrats’ controversial plan to change Senate rules, the first day of the 112th Congress will last about two and a half weeks.
With Democrats in disarray but determined to change the chamber’s filibuster rules, Senate Majority Leader Harry Reid (D-Nev.) plans to use a procedural trick that will allow him to hold open the first legislative day of the session until the Senate returns from a two-week recess on Jan. 24.
The two-and-a-half-week “day” is intended to buy the party some time to come up with a rules change proposal they can actually get behind while simultaneously trying to avert a major partisan showdown. Republicans agree that Reid has the power to hold the legislative day open, noting their quarrel is really with what he will want to do when that day comes to an end.
“If they want to get this Congress off on the wrong footing from the get-go, the exact wrong thing to do is to try to do some kind of significant rules change,” Minority Leader Mitch McConnell (R-Ky.) told Roll Call on Tuesday. “We are having some conversations [with Democrats]. But I can tell you that main problem is we need to quit acting the way we acted the last two years. I hope they will do that on their own, because, as I said, any advantage they might achieve by ... changing the rules ... leads to nothing.”
Senate Democratic aides said Reid’s preferred resolution would be to reach an agreement with McConnell that would avert the use of a rarely used precedent in which Senate rules are altered by a simple majority, rather than the 67 votes traditionally required. That precedent must be invoked during the first legislative day, according to rules experts. Members in both parties have cautioned that using the option could open a Pandora’s box in which new majorities change Senate rules every few years, rather than adhering to time-honored traditions that have made the Senate a “cooling saucer” for the country’s political debates.
While Democrats have squabbled among themselves, secretive talks have been ongoing between Reid and McConnell for weeks, and Democratic Conference Vice Chairman Charles Schumer (N.Y.) has met at least four times with GOP Conference Chairman Lamar Alexander (Tenn.) to talk about a potential bipartisan resolution to the standoff.
Following a speech Tuesday at the Heritage Foundation in which he criticized Democrats for entertaining the rules changes, Alexander said Republicans are “listening carefully to the suggestions” from Members, but that no agreement had been reached.
“I’ve talked to a lot of Senators on both sides of the aisle ... I think most of us want the same thing: We want to restore the Senate to a place where bills comes to the floor with some sort of bipartisan cooperation and then almost any Senator gets almost any amendment. That’s where we’d like to get,” he said.
Even as Alexander said that most Republicans think the Senate should focus on changing their behavior and leave the rules alone, he indicated a bipartisan agreement could be reached on a proposal to eliminate secret holds and another proposal that would make it easier for presidents to have their executive nominations confirmed.
But Alexander was confident the filibuster would remain largely intact once the dust cleared.
“I think cooler heads are likely to take a look at this and say the Senate is too valuable an institution to tamper with it in this way,” he said. “That’s what happened every other time it’s come up.”
He also warned, “I’d rather not speculate about the consequences, but they would be very dramatic. That’s why the Democrats called a similar effort by Republicans in 2005 the ‘nuclear option.’”
Currently, 60 votes are needed to beat back an attempted filibuster, which is achieved by filing a motion to invoke cloture, or limit debate. A failure to get 60 votes has come to represent a sustained filibuster, rather than the image of a lone Senator refusing to yield the floor until the bill is dropped.
Despite months of talking behind the scenes about what they say is the GOP’s misuse of the filibuster, junior Democrats from the 2006 and 2008 classes have yet to come up with a set of rules changes that has the votes to pass. Senate Democratic leaders have been loath to step in as arbiters, even as they have vowed to push any consensus proposal that crops up from the lower ranks.
Still, Sen. Tom Udall (D-N.M.) and others plan to take to the Senate floor today to introduce resolutions that would restrict the minority’s right to filibuster and place secret holds on bills.
Sen. Jeff Merkley (D-Ore.) said Tuesday that the effort is intended to “launch debate” and that “people will put various ideas out” for discussion over the next few weeks, with the intent of voting on a proposal or two when the chamber reconvenes Jan. 24.
Udall’s proposal, which had not been translated into legislative language as of press time, would include four basic tenets, according to his spokeswoman: eliminating filibusters on motions to proceed, or to bring bills up for debate; ensuring that the minority always has the right to offer at least three amendments to any bill; requiring objectors to be present on the floor to register their objections; and eliminating secret holds, which allow Senators to anonymously hold up nominations and bills. The proposal may also shorten debate time once cloture has been invoked on a nomination.
Merkley has also suggested guaranteeing amendments and forcing people to hold the floor while objecting to a bill or nomination.
“This is a starting point, not a finished soufflé,” one Senate Democratic aide said.
Democratic aides speculated that any final proposal would not include an end to filibusters on motions to proceed, nor would it include a minimum guarantee of amendments for the minority.
Sen. Tom Harkin (D-Iowa) may also offer his own proposal to reduce the number of votes needed to invoke cloture, and Sens. Claire McCaskill (D-Mo.) and Ron Wyden (D-Ore.) may offer their proposal to eliminate secret holds as well.
An elongated legislative day is nothing new to the Senate, Historian Don Ritchie said. In 1979, then-Majority Leader Robert Byrd (D-W.Va.) held a legislative day open for five weeks while he pushed a rule change barring filibusters that were mounted after cloture was invoked.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.