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. )
Here is Washington University’s Smith on what happened last week: “The use of the motion to suspend the cloture rule threatened to break open post-cloture debate again. Senators sought approval of motions to suspend the cloture rule to take up amendments that were not submitted in advance, as required by Rule 22. The presiding officer ruled that the Senate is required to vote on such motions to suspend, even in the post-cloture period. Because such votes had occurred in the past (see July 21, 2010), it appeared to be a ruling that was technically correct.
“Reid, however, made the argument that the motion to suspend was dilatory. As in the past, what is dilatory and what is not is a matter of intentions and difficult to judge. Reid argued that a series of motions to suspend could delay post-cloture debate indefinitely, which would be dilatory under the meaning of Rule 22. Plainly, Reid’s argument has some foundation even if it required a new precedent to implement. Mondale’s rulings serve as precedent for a broad interpretation of what constitutes a dilatory motion or amendment.”
Reid and Minority Leader Mitch McConnell (R-Ky.) had reached agreement on seven nongermane amendments to be debated on the floor during consideration of the China currency bill. An eighth was brought up without any notice or agreement, which is what triggered the move to suspend the rules and Reid’s response. Binder made an additional, important point using research by political scientists Chris Den Hartog and Nathan Monroe — namely that in the postwar era, the presiding officer has been overruled by majority vote roughly a quarter of the time. This one might have been different, but overruling the parliamentarian is not at all unusual.
Now this kind of back-and-forth can clearly strain what remains of comity in the Senate and can strain the relationship between Reid and McConnell. But it is beyond a stretch to say that this was a nuclear response that now opens the door for McConnell, if and when he becomes Majority Leader with a Republican president and House, to overturn the 60-vote hurdle in Rule XXII, as Marc Thiessen said in the Washington Post.
Which is also to say that if McConnell, with a 51- or 52-seat majority, decided that the best way for him to overturn every accomplishment of the Obama administration and confirm a slew of judges was to invoke the nuclear option and use a majority to ignore Rule XXII, he would not need a flimsy excuse like last Thursday’s to do it.
Norman Ornstein is a resident fellow at the American Enterprise Institute.