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Democrats seek to curb filibusters

Senators frustrated by delaying tactics

By Mark Arsenault
Globe Staff / December 31, 2010

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WASHINGTON — Frustrated Senate Democrats, frequently thwarted by a record number of Republican filibusters, are preparing an effort to weaken the much-lamented tactic that allows a minority in the chamber to delay or derail legislation.

They seek to turn back rules that have bedeviled presidents and majority party leaders for decades. But the filibuster has proven resistant to reform before, and it’s not yet clear if enough senators are committed to a profound change in the ways of Washington, as dysfunctional as they may sometimes seem from the outside.

Even getting to a vote on the rule change next week may prove contentious.

Democrats will argue that the Constitution gives the 100-member Senate the authority to amend its rules with a simple majority of 51 votes on the opening day of a new Congress, Jan. 5. Republicans, when they held the majority in 2005, also made a bid to ban the filibuster on judicial nominees — using a similar strategy that came to be known as “the nuclear option.’’ That attempt five years ago was averted by a negotiated deal.

“It’s technically feasible, but pretty heavy-handed,’’ said Steven Smith, a political scientist at Washington University in St. Louis who co-authored a book on the filibuster. “It’s an open question on how far the Democrats are willing to go.’’

The filibuster is a parliamentary tactic that allows a minority to prevent a vote on a bill or nomination, even if a majority of senators would vote in favor. Sixty senators can break a filibuster, a high hurdle for a Democratic caucus that will have 53 members next year.

The Democrats’ goal is not to eliminate the filibuster, which no party holding a tenuous majority is likely to do, but to make it more burdensome for the minority party to block Senate business, to curb what Senator Tom Harkin calls the “escalating arms race’’ of partisan obstructionism that frequently grinds the Senate to a stop.

“We just can’t continue to run a superpower in the 21st century with 19th-century rules,’’ said Harkin, an Iowa Democrat.

Republicans warn that an effort to force new rules, “would basically destroy the Senate as an institution that protects the minority party’s rights,’’ said Senator Lamar Alexander, a Tennessee Republican.

There’s nothing in the Constitution about the filibuster, and complaints about partisan gridlock in Washington reliably cite the tactic as Exhibit A. But the filibuster, created by accident, has evolved into a check on majority power in American politics. Its procedural hoops are a treasured tool of the minority to slow the pace of change.

“Appreciation of the Senate’s role in our national debate is an acquired taste,’’ said retiring Senator Chris Dodd, a Connecticut Democrat, in remarks last month urging that the filibuster be left alone.

The tactic was once rare; in the four decades before 1960, the Senate held 23 votes seeking to break a filibuster. But those numbers started creeping up in the 1970s, and escalated as both parties employed the tactic. Since Democrats took control of the Senate in 2007, there have been 203 votes to break filibusters, double the number of the previous four years.

Filibusters are now common on routine bills and White House nominations. Every returning Democratic senator signed a letter last month to majority leader Harry Reid urging him to back changes in the rules.

Reid “agrees on the need for reform,’’ his office said, but he has not endorsed specific changes.

One plan gaining favor in the Democratic caucus would require the minority to hold the floor and continue to argue its position to maintain a filibuster, as portrayed in the all-night speech by Jimmy Stewart in the 1939 film “Mr. Smith Goes to Washington.’’

The goal of the reform would be to make the filibuster “something used rarely and which requires great sacrifice on the part of a minority that felt so intense about something that they would go all out for it,’’ said Norman Ornstein, a resident scholar at the American Enterprise Institute, a Washington think tank.

The “talking filibuster’’ is an anachronism, due in part to a change in practice in the 1970s under which the Senate began to switch to other business during filibusters to keep its agenda moving. The majority can’t make senators talk all night to defend a filibuster. If it tried to require an overnight debate, for instance, a single minority member could simply resort to an alternative stalling tactic: repeatedly demanding a lengthy quorum count.

“Jimmy Stewart as Mr. Smith didn’t need to hold the floor with his filibuster,’’ said Thomas Mann, who studies Congress at the Brookings Institution, a Washington think tank. “Senator Smith’’ or a few allies could have opted for procedural tactics to delay Senate business until the majority got fed up and ended debate with a cloture vote, but that would have spoiled the movie.

In famous filibusters of real life, such as Strom Thurmond’s 24-hour stemwinder against a civil rights bill in 1957, opponents spoke continuously because they wanted to make a point. These speeches “were designed to rally the public or at least appeal to the constituencies of those senators opposed to a particular measure,’’ said Mann, in an e-mail.

Skeptical Democrats have warned that forcing a talking filibuster would provide an infomercial for senators engaged in all-night speechifying, a concern dismissed by Senator Jeff Merkley, an Oregon Democrat and proponent for reform.

“Would there be members who cherish the opportunity to have to stand there and make their case all night long?’’ he said in an interview. “I doubt it on these routine things.’’

Republicans have their own beef with the way business has been conducted in the Senate, and complain that Reid has too often trampled their rights by forcing votes without allowing the GOP to offer amendments for debate.

“What we need is a change in behavior more than a change of the rules,’’ Alexander said in an interview.

“We wouldn’t even be where we are if you had the old bulls in both parties who wouldn’t have stood for gamesmanship because they were caretakers of the institution first and foremost,’’ said Senator John F. Kerry, a Massachusetts Democrat who said he favors reform.

Senator Scott Brown, the Massachusetts Republican, could not be reached this week.

Senators from both parties have held private talks aimed at an agreement to limit the use of the filibuster; in return Senate Republicans will insist on greater opportunity to offer amendments, according to Alexander.

Should the talks fail, the first day of the new Senate could bring high drama: Senator Tom Udall, a New Mexico Democrat, plans to offer a motion to institute the talking filibuster and to end the practice of secret holds, under which a single senator can anonymously delay a piece of Senate business.

A strong core group within the Democratic caucus is determined to force the debate, Udall said, and absent an ironclad deal between the party leaders, “we’re going to proceed with our proposal.’’

Filibuster tactic at a glance

■ The filibuster is a parliamentary tactic in the US Senate that allows a minority of members to prevent a vote on a bill or nomination, even if a majority would vote in favor. A filibuster can be broken by a vote of 60 senators.

■ The Senate accidentally opened the path for filibusters in 1806, when an effort to delete some redundant rules left the Senate no way to cut off deliberations if members insisted on speaking continuously or used other tactics to impede the flow of business.

■ In 1917, the Senate adopted a rule that two-thirds of the Senate could end a filibuster through what is known as a cloture vote. The threshold was reset to 60 votes in 1975.

■ Senators do not have to keep talking to enforce a filibuster. They can use procedural tactics to cause delay and prevent votes.

■ Some Senate Democrats are proposing to weaken the filibuster rule using a parliamentary tactic that would permit a change with a simple majority vote. Republicans pursued a similar path when they held the majority in 2005. A vote never took place, however, because bipartisan group of senators negotiated a truce.

SOURCE: Globe staff