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For Real Drama, Senate Should Engage in a True Filibuster

For many Senators, this week will take them back to their college years — they’ll pull an all-nighter, but this time with no final exam to follow. [IMGCAP(1)]

To dramatize Republican obstructionism, Majority Leader Harry Reid (D-Nev.) has decided to hold a mini-version of a real, old-time filibuster. In the old days, i.e., the 1950s, a real filibuster meant the Senate would drop everything, bring the place to a screeching halt, haul cots into the corridors and go around the clock with debate until one side would crack — either the intense minority or the frustrated majority. The former would be under pressure from a public that took notice of the obstructionism thanks to the drama of the repeated round-the-clock sessions.

It is a reflection of our times that the most the Senate can stand of such drama is 24 hours, maybe stretched to 48. But it also is a reflection of the dynamic of the Senate this year that Reid feels compelled to try this kind of extraordinary tactic.

This is a very different year, one on a record-shattering pace for cloture votes, one where the threat of filibuster has become routinized in a way we have not seen before. As Congressional Quarterly pointed out last week, we already have had 40 cloture votes in six-plus months; the record for a whole two-year Congress is 61.

For Reid, the past six months have been especially frustrating because the minority Republicans have adopted a tactic of refusing to negotiate time agreements on a wide range of legislation, something normally done in the Senate via unanimous consent, with the two parties setting a structure for debate and amendments. Of course, many of the breakdowns have been on votes related to the Iraq War, the subject of the all-night debate and the overwhelming focus of the 110th Congress. On Iraq, the Republican leaders long ago decided to try to block the Democrats at every turn to negate any edge the majority might have to seize the agenda, force the issue and put President Bush on the defensive.

But the obstructionist tactics have gone well beyond Iraq, to include things such as the 9/11 commission recommendations and the increase in the minimum wage, intelligence authorization, prescription drugs and many other issues.

Minority Leader Mitch McConnell (R-Ky.) and his deputy, Minority Whip Trent Lott (R-Miss.), have instead decided to create a very different standard in the Senate than we have seen before, with 60 votes now the norm for nearly all issues, instead of the exception. In our highly polarized environment, where finding the center is a desirable outcome, that is not necessarily a bad thing. But a closer examination of the way this process has worked so far suggests that more often than not, the goal of the Republican leaders is to kill legislation or delay it interminably, not find a middle and bipartisan ground.

If Bush were any stronger, and were genuinely determined to burnish his legacy by enacting legislation in areas such as health, education and the environment, we might see a different dynamic and different outcomes. But the president’s embarrassing failure on immigration reform — securing only 12 of 49 Senators from his party for his top domestic priority — has pretty much put the kibosh on a presidentially led bipartisan approach to policy action.

Republican leaders have responded to any criticism of their tactics by accusing Reid and his deputy, Majority Whip Dick Durbin (D-Ill.), of trying to squelch debate and kill off their amendments by filing premature cloture motions, designed to pre-empt the process and foreclose many amendments. There is some truth to this; early on, especially, Reid wanted to get the Senate jump-started and pushed sometimes prematurely to resolve issues.

But the fact is that on many of the issues mentioned above, Reid has been quite willing to allow Republican amendments and quite willing to negotiate a deal with McConnell to move business along. That has not been enough. As Roll Call noted last week, on both the intelligence bill and the Medicare prescription drug measure, Republicans were fundamentally opposed to the underlying bills and wanted simply to kill them.

The problem actually goes beyond the sustained effort to raise the bar routinely to 60 votes. The fact is that obstructionist tactics have been applied successfully to many bills that have far more than 60 Senators supporting them. The most visible issue in this category has been the lobbying and ethics reform bill that passed the Senate early in the year by overwhelming margins.

Every time Reid has moved to appoint conferees to get to the final stages on the issue, a Republican Senator has objected. After months of dispute over who was really behind the blockage, Sen. Jim DeMint of South Carolina emerged as the bête noire. But Republican leaders have been more than willing to carry DeMint’s water to keep that bill from coming up.

The problem Reid faces on this issue is that to supersede the unanimous consent denial, he would have to go through three separate cloture fights, each one allowing substantial sustained debate, including 30 hours worth after cloture is invoked. In the meantime, a badly needed reform is blocked, and the minority can blame the majority for failing to fulfill its promise to reform the culture of corruption. It may work politically, but the institution and the country both suffer along the way.

Is this obstructionism? Yes, indeed — according to none other than Lott. The Minority Whip told Roll Call, “The strategy of being obstructionist can work or fail. For [former Senate Minority Leader Tom] Daschle, it failed. For Reid it succeeded, and so far it’s working for us.” Lott’s point was that a minority party can push as far as it wants until the public blames them for the problem, and so far that has not happened.

The war is a different issue from any other. McConnell’s offer to Reid to set the bar at 60 for all amendments related to Iraq, thereby avoiding many of the time-consuming procedural hurdles, is actually a fair one — nothing is going to be done, realistically, to change policy on the war without a bipartisan, 60-vote-plus coalition. But other issues should not be routinely subject to a supermajority hurdle.

What can Reid do? An all-nighter might help a little. But the then-majority Republicans tried the faux-filibuster approach a couple of years ago when they wanted to stop minority Democrats from blocking Bush’s judicial nominees, and it went nowhere. The real answer here is probably one Senate Democrats don’t want to face: longer hours, fewer recesses and a couple of real filibusters — days and nights and maybe weeks of nonstop, round-the-clock debate, bringing back the cots and bringing the rest of the agenda to a halt to show the implications of the new tactics.

At the moment, I don’t see enough battle-hardened veterans in the Senate willing to take on that pain.

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

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