It is worth a column to comment on last week’s Senate flap. Rules controversies in the Senate can be opaque and convoluted, so it is no surprise that so many reporters and commentators got it wrong. A word of advice to all of the above: Whenever there is confusion or question about what is going on in the Senate, Google Sarah Binder and Steve Smith to clear it up.
Binder, of George Washington University and the Brookings Institution, and Smith, who heads the Weidenbaum Center on the Economy, Government and Public Policy at Washington University in St. Louis, are the leading academic experts on Senate rules and have the ability to explain complexities in simple terms. In this case, at themonkeycage.org, both weighed in with the clearest explanations of what happened. Read them both (and Greg Koger at the same site).
Here is the bottom line: Majority Leader Harry Reid (D-Nev.) did not employ the nuclear option or go nuclear, as many headlines and stories suggested. He did not use an unprecedented ploy to challenge the filibuster or in any real way change Senate rules by majority vote. What Reid employed was closer to a firecracker than a nuke.
The issue was not the filibuster, but delays after cloture has been invoked — what is known as post-cloture filibusters.
From the days of Senate Democrats James Allen (Ala.) through Howard Metzenbaum (Ohio) and James Abourezk (S.D.), the stretch in Senate norms by finding creative ways to defy the intent of the rules to allow 60 Senators to stop debate and move to action has been a matter of controversy, one that drove the late Sen. Robert Byrd (D-W.Va.) to distraction.
What is the intent? Well, here is the relevant section of Rule XXII: “No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.”
When Abourezk and Metzenbaum flooded the zone with amendment after amendment after cloture on the energy bill in 1977, Majority Leader Byrd got the presiding officer (Vice President Walter Mondale) to rule that the amendments were dilatory under Rule XXII, and the appeal of the ruling of the chairman was overwhelmingly rejected.
In 1979, the Senate moved to solve the post-cloture filibuster by making the limit on time spent post-cloture, now 30 hours, include all the time spent on procedural motions. That change, adopted overwhelmingly, seemed to solve the post-cloture filibuster problem (although the fact is that by insisting on using all 30 hours, even with no one actually debating, for dozens of filibusters on noncontroversial bills and nominations in the 111th Congress, the minority Republicans broke new ground on post-cloture obstructionism. )
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.