Did Harry Reid just make the Senate less dysfunctional — or more partisan?
Did Harry Reid’s maneuver in the Senate last night crack open the door to partisan abuse of Senate procedure — or to bipartisan filibuster reform? Last night, the majority leader (D-Nev.) imposed an unprecedented limit on the ability of the minority to offer up amendments after cloture has been invoked — the motion to bring debate to a close — as Ezra explains. Reid’s opposition to the GOP’s dilatory tactics reflects the growing frustration that the Senate’s rules make it too easy for the minority to obstruct legislation. The move has led to some hope that Congress will finally be pressured to reform the procedures of a dysfunctional Senate, as well as fear that future majorities could use (and potentially abuse) the precedent that Reid has set. But there are also obstacles that could keep big changes from being implemented.
Republicans may simply respond to Reid’s procedural move by using all other opportunities to offer up amendments to block legislation while they’re still in the minority. On the other hand, if the GOP captures the majority, the party may also take advantage of Reid’s precedent and push it even further — possibly making it easier to repeal legislation such as Obama’s health reform law, as Politico explains today. In other words, it could escalate the way that both parties have used the existing rules to their advantage.
But there’s a more optimistic, if perhaps not all that likely, possibility, too. Steve Smith, a political scientist at George Washington University, sees a path to reforming Senate procedure through bipartisan channels, which Reid’s move could unexpectedly help catalyze. The Senate GOP might recognize “that the majority is serious about closing down post-cloture opportunities for the minority” — that is, the opportunity to draw out the legislative process further, even after the majority has secured enough votes to pass a bill. The two sides could then conceivably come up with a bargain that would make it easier for the minority to offer up amendments, in exchange for making it easier for the majority to achieve cloture and break a filibuster. Sen. Chuck Schumer (D-N.Y.) offered up this kind of suggestion during rules hearings last year, and Democratic Sens. Jeanne Shaheen (N.H.) and Tom Harkin (Iowa) offered up a bill that would even lower the number of votes needed to overcome a filibuster
But the problem with such proposals isn’t just with a minority afraid of losing their rights: Centrist Democratic senators like Ben Nelson (Neb.) and Mary Landrieu (La.) would also be likely to oppose such cloture reforms. “Moderate senators find themselves pivotal to many debates, and they want their votes to matter — those senators generally sitting between three-fifths and simple majority would lose the most” under filibuster reform,” Smith says. So the same obstacles to changing the Senate rules remain.
There’s another way Smith believes that bipartisan filibuster reform could happen, but one that would go well beyond the bounds of the latest flare-up over Reid’s move. Basically, the minority would have to abuse its ability to obstruct to such an extreme, blocking legislation so overwhelmingly popular that public approbation would shame the minority into allowing a change to the rule. But these would be extremely unusual circumstances. “The minority is usually pretty good at calculating when to obstruct,” Smith says.
Perhaps the most significant instance in which this happened led to the creation of cloture itself, he adds: In 1917, a small group of isolationist-minded senators filibustered an amendment that would allow U.S. merchant marines to arm themselves against German submarines that were sinking American ships. The filibuster was so unpopular that it sparked a public outcry and led the Senate to introduce the procedure of cloture to stop such obstructionism. In other words, it took a military attack on the United States — and the obstruction of the country’s ability to protect itself — to compel a change to the rules that both parties could agree on.
So of the two options — partisan escalation or bipartisan agreement — it’s not hard to conclude which is more likely.