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Will Democrats Risk Filibuster Strategy on Energy, Medicare?

The 39-hour sort-of filibuster in the Senate last week was sort of interesting, though not as an example of the Senate tradition of unlimited debate, nor as an example of the Senate tradition as a great deliberative body, nor even as an example of the serious questions surrounding how both the president and the Senate do and should handle judicial nominations. [IMGCAP(1)]

It would have been more interesting if it had been a real filibuster — if the Senate Republicans had decided to fight the Democrats’ filibuster of four or six appeals court nominations by actually bringing the body to a halt and going ’round the clock until one side caved under public pressure or fatigue. No way. This is the 21st century, where wussiness rules.

It could have been interesting if the 39 hours had been structured as a real debate, along the lines of the Kyl-Dorgan floor debates that had a promising start but have not yet been fleshed out. Instead, we had 30-minute seriatim speeches, with virtually no real dialogue or give and take.

It could have been interesting if it seemed to lead to at least some bipartisan approach to future nominations, even if that approach was delayed until the next president took office to remove the immediate partisan interests. Such a step would require both sides to rethink their positions. The over-the-top rhetoric on the Senate floor, with each side ignoring the legitimate points of the other to appeal to their parties’ ideological bases, makes that outcome unlikely.

So there appear to be two likely outcomes here.

One is a continuing Hatfield- McCoy type feud, lasting indefinitely and leaving each succeeding president to suffer payback for the sins of his or her party in the past.

The other is a move by Senate Republicans to change the rules, either by fiat or at the beginning of the next Congress (assuming a second term for President Bush and a continuing GOP majority) by having Vice President Cheney declare that the Senate is not a continuing body, allowing a majority to write new rules. While the Republicans no doubt would attempt to create a narrow exception to filibusters, encompassing just judicial (or perhaps judicial and executive) nominations, the precedent would be there for each new majority to craft any rules that would fit its immediate legislative needs. The Senate would become more like the House, but would also become less innately conservative — less a check and balance, less of an obstacle to immediate majority sentiment or mobilization.

I suppose one has to add the possibility of a third outcome — that the Supreme Court would intervene here and declare Rule XXII unconstitutional. That the court would step in to a matter involving Congressional rules, given that Rule XXII did not raise the bar from a majority to end debate but lowered it from its previous unlimited status, seems laughable, but after Bush v. Gore, anything is possible.

Those outcomes and this dynamic aside, the 39-hour marathon was most interesting because of its link to other dominant issues now, and to the Republican and Bush strategy of governance. Republicans in the Senate knew that this faux filibuster would change no minds and make no substantive difference. But it did afford them an extended opportunity to hammer away at Democratic obstructionism in the Senate. That is the emerging campaign theme for the GOP, one that will be an all-purpose way to rally the troops and explain away policy inaction or failure. It also becomes a prime weapon for policy leverage and a major political and policy dilemma for Democrats.

Consider the two prime domestic policy issues currently on the table, energy and prescription drugs. Both involve major policy change. Both could easily have been resolved a long time ago if the president had chosen to aim for a broad bipartisan majority. While both have seen a somewhat different approach by the White House and the majority, the fundamental strategy here has been the core strategy employed by the White House and Congressional Republicans since the start of the Bush presidency: Form your majorities with Republicans, turning to Democrats only when absolutely necessary. The strategy has evolved to include one interesting corollary that we saw applied on prescription drugs: Make any and all concessions to Democrats in the Senate such as Sen. Edward Kennedy (Mass.) to get bills through the body, and then eliminate all those concessions in conference committees, forcing ultimate up-or-down votes under favorable parliamentary conditions on the conference reports.

Of course, with very narrow majorities in both houses, this has been a high-risk strategy. It requires near-perfect unity in both chambers — and that nearly came unraveled on the House floor on prescription drugs, where nine Democrats saved the Republicans’ collective posterior when a large number of GOPers revolted. It still required leaving the voting machines on for nearly an hour after their prescribed time, and virtually dragging a weeping Rep. Jo Ann Emerson (R-Mo.) to the floor to reverse course.

With the conscious decision to keep Democrats out of the negotiations until Republicans have agreement, it also requires agreement between House and Senate Republicans in the conference, and deep differences there, over philosophy, chamber orientation and personality, kept both bills deadlocked for months. They would still be there if not for the aggressive intervention of the Republican Party leaders in both houses. And, of course, the Senate Republicans also succeeded by employing slightly different approaches to Democrats on the two issues. They kept all Democrats out of the picture on energy, but kept only liberals outside the room on prescription drugs — knowing that they could cut a deal with Sen. John Breaux (D-La.), who has a longstanding position on Medicare, and knowing from experience that they could convince the highly pliable Sen. Max Baucus (D-Mont.) to go along.

Republicans have known two more things. First, Democratic unity is an oxymoron, like jumbo shrimp or military intelligence. On energy, despite being dissed in the extreme and facing votes on a bill that tilts heavily to industry and has many questionable provisions, many Democrats from ethanol and energy-producing areas will be strongly tempted to vote for the bill. Second, there are only so many filibusters Democrats can attempt and sustain before overload sets in and political pressures become unbearable.

Democrats have lots of reasons to be frustrated and furious, but their options are limited. They have every reason to filibuster and do so repeatedly. The only way to force the president and the Republicans in Congress to deal with them is to block action on bills where they have been excluded. At the same time, with Republicans in full control of the machinery of power in Washington, charges of obstructionism are unlikely to hold sway with an electorate that tends to hold parties in power accountable for failure. How many can they sustain, and for how long?

With Kennedy as a protective force and labor behind them, Democrats should have a shot at blocking this hybrid prescription drug plan. But the surprising support for the bill of AARP — surprising given the substance of the bill — makes that approach highly problematic. The AARP calculus is fairly clear: With more tax cuts to come, sharp increases likely in spending for defense, homeland security and Iraq, and ever-higher deficits, the $400 billion brass ring for prescription drugs may not be available again for a long time. Get a law in place, and the odds are that seniors will apply enough political pressure to expand the benefits and ameliorate the problems — probably even before 2006 when the key features of the bill kick in.

If Democrats fail to hold the line on prescription drugs, they will be even less likely to do so on energy. Republicans will soon expand their conference committee strategy to apply the take-it-or-leave-it approach to omnibus appropriations, ratcheting up the pressure on Democrats even higher. Democrats may be left with one lonely area where they can keep their own act together, a handful of appeals court nominees.

When majorities are close, party unity becomes the key to partisan success or failure. The Republican key has been sturdy and shiny solid brass. The next weeks will determine whether the Democrats’ key is made of Silly Putty.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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