While Republicans, who will take control of the House of Representatives tomorrow, are promising to repeal healthcare reform and commence investigations into several facets of the federal government, Democrats, who are still in control of the Senate, have also been considering some significant moves aimed at curtailing the power of the filibuster.
At the heart of the Senate's dysfunction is the abuse of the filibuster, said Sen. Jeff Merkley, D-OR, in a memo he has been circulating. Indeed, the Senate's original commitment to full and open debate has been transformed into an attack designed to paralyze and obstruct the Senate's ability to function as a legislative body.
The filibuster is the procedure whereby a single senator can object to any unanimous consent proposal to bring a measure to a vote. When the objection is made, the Senate may not proceed to a vote on the particular measure, but must first override the filibuster with a supermajority of 60 votes - a procedure called a cloture vote - before it can vote on the measure.
As Merkley pointed out, contrary to traditional depictions, the objecting senator does not have to speak continuously on the Senate floor to sustain his or her objection.
A senator who objects to the regular order pays virtually no price in time or energy, Merkley said. At most, one senator must stay near the floor to object to any unanimous consent proposal designed to force a vote. As a 'courtesy,' this task can be handled by a member of the objecting senator's leadership.
Merkley argued that the burden falls on the rest of the senators to amass a 60-vote supermajority.
Historically, this power did not paralyze the Senate because it was invoked upon rare occasions, Merkley said. In recent times, however, minority senators have started objecting to the regular order on nearly a daily basis, paralyzing the Senate.
Sen. Tom Udall, D-NM, pointed out that there have been more filibusters since 2006 than the total between 1920 and 1980.
Merkley and Udall are proposing changes to the Senate rules concerning the filibuster. Udall is expected to make a motion for a rules change tomorrow.
Republicans held 41 Senate seats in 2010, yet effectively used the filibuster to kill Democratic-backed legislation, like the Dream Act, and to delay other legislation, like the unemployment insurance extension, until the majority party agreed to back Republican proposals.
Merkley and Udall are saying that not only did the minority party stall and kill significant legislation with the filibuster, but also slowed Senate activity to a crawl. With so much time used up trying to woo a few Republicans for a supermajority on big issues, a lot of Senate business was never attended to.
The Senate did not adopt a budget in 2010 or pass any appropriations bill; over 400 House bills went unaddressed in the Senate; 125 executive appointments were left to languish - what Merkley called an abuse of the Senate's 'advise and consent' responsibilities - and 48 judicial nominations have not been voted on, Merkley and Udall said.
The Senators are not proposing a rules change to lower the supermajority from 60 or even to make it a simple majority, as some lawmakers and members of the public have called for. Rather, they are proposing changes that would make filibustering more difficult and other reforms aimed at removing some of the reasons Republicans say they are forced to filibuster.
We have yet to see a Udall package on just what he will be proposing, said Sarah Binder, senior fellow at the Brookings Institute. Bits and pieces of filibuster reform proposals are out there, but we're not sure yet what the whole thing will look like. We do know there is no effort to lower the threshold for cloture from 60 votes.
Binder said that the proposal will likely follow Merkley's memo to force the filibustering senator, and a specified number of senators from the filibustering party, to remain on the floor of the Senate to maintain the delay in voting, and that any time the proper number of senators is found by the sergeant-in-arms not to be presence, the filibuster would die and the particular measure move to a vote.
The Udall/Merkley reforms will likely also guarantee that amendments to a bill may be proposed by either party. Republicans have said that they were forced to filibuster so often because the Democratic majority would not allow their input or their amendments.
Binder pointed out that Minority Leader Mitch McConnell, R-KY, complained that the Republicans were being ignored, while Majority Leader Harry Reid, D-NV, said that he made offers to the Republicans to allow them input, but was not going to be pushed to cede the majority party's controlling role.
Normally, a change in Senate rules would require a two/thirds majority, or 67 votes, which would be all but impossible for Democrats to muster. However, on the day that a new Congress convenes, rule changes can be made by a simple majority.
Democrats have 53 votes to the Republicans' 47. Tomorrow is the first day of the new Congress. If Democrats want to change the filibuster rules, tomorrow's the only day they will be able to do it.
Already, however, there are signs that the Democrats may cave to pressure from Republicans, who are vowing to take the case to the people that, as soon as Congress opened, the Democrats, roundly defeated in November, changed the rules to deny the voters' will.
Voters who turned out in November are going to be pretty disappointed when they learn the first thing Democrats want to do is cut off the right of the people they elected to make their voices heard on the floor of the U.S. Senate, said Sen. Lamar Alexander, R-TN.
Binder said that the Democrats may chose a path that allows the rule change to be considered and yet avoids the impression that Democrats are acting counter to the voters' wishes.
Udall would make it to the floor tomorrow, and make a motion, then Reid would call the Senate into recess, Binder said.
Calling a recess on the first day will allow first-day rules to apply when the Senate reconvenes, in a week or two, and the hiatus would allow Democrats to explain the new rules to the public and perhaps reach a compromise with Republicans.