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They’re Back…unless They Filibuster…

Speaker Boehner (wikipedia)
The 112th Congress was gaveled into session in Washington, D.C. yesterday  Republicans took over the House of Representatives and swore in Ohio Congressman John Boehner as the Speaker of the House.  While a great deal of the GOP’s support came from tea partiers, Speaker Boehner is a creature of the Republican establishment. 

Despite his lieutenants hyperbolic assessments of the last Congress and the paranoia of his budget committee leader, John Boehner may be the most reasonable man in the room.  Keenly aware of how Newt Gingrich detonated the effectiveness of his caucus’ majority (of which Boehner was a member), he will try to navigate his party‘s new possibly bipolar plans.  However, if President Obama courts (or exploits) him correctly, it will be for the good of the country and at the end of the day even Boehner would be unlikely to dislike the results in his heart of hearts. 

Rep. Pelosi (wikipedia)

Nancy Pelosi handed over control of the House to Boehner, but not before giving a speech highlighting the past Congress’ accomplishments and praising Boehner commitment to family, God and country [no sarcasm, no really].  Pelosi, in passing a conspicuously large gavel selected by Boehner, noted the peaceful transfer of power that indeed, does define our country.  Now, if only Boehner encouraged his people to tamp down on the cruel personal attacks waged against Pelosi during the campaign.

Already the promises of the GOP have been broken, particularly on the budget.  Freshman Republicans, tea partiers included, have run into the warm embrace of Washington’s power structure.  However, some changes may benefit Democrats since the minority will, supposedly, have more access to offer amendments.  The planned reading of the Constitution apparently went by without much problem, although the NY Time’s Caucus blog did report some protesters.  Overridden elements of the Constitution like 3/5 of a person and Prohibition were left out.  The reading was meant to placate tea partiers, who seem to believe that a plain text reading naturally yields to their viewpoint and theirs alone.  Again, look to the New York Times for how it is not quite that simple even with plain text readings.

Over in the Senate, the Republicans gained six additional seats, but otherwise remained in Democratic control.  Only three Senate seats were up in New England.  Republican Kelly Ayotte of New Hampshire and Democrat Richard Blumenthal of Connecticut joined the Senate while Democrat Patrick Leahy of Vermont was sworn in for another term.  There was no changeover among New England Senate seats.

On tap the first day was a host of proposed filibuster reforms.  Indeed, the consensus is that while usually rules changes (which filibuster reform would be) require 67 votes, at the beginning of a new session, the Senate may change its rules with a simple majority.  The Senate adjourned today without making the changes, but technically the legislative day did not end.  Instead it will be held open while Democrats and Republicans attempt to hammer out an agreement and failing that, they may act unilaterally.

Sen. Udall (wikipedia)

The reforms, pushed by New Mexico’s Tom Udall and Oregon’s Jeff Merkley, both of the class 2008, would not bring down the filibuster’s threshold.  However, it would provide, in the spirit of what voters actually want, accountability and transparency.  Reform seemed unlikely until all Democrats returning to Congress as of last month signed a letter demanding change.  The only Democrat leaving but whose seat did not change party hands, Chris Dodd, opposed reforms, but his successor Richard Blumenthal supports them.

While some on the left and in the media have complained that the filibuster is not being cut back further or that not enough weight is put on the minority to sustain it, the reforms do fit the current political reality.  First, contrary to the beliefs of some, filibuster reform is not new.  The most significant threshold change was in 1975, when it fell from 67 to 60, but it had been amended numerous times since its present form was instituted in 1917.  Before that unanimous consent was needed for any legislation to move to a vote.  In 1917, frustrated by filibusters opposed to arming merchant ships during World War I, the Senate, at Pres. Wilson’s insistence, instituted cloture to end debate.

Pres. Woodrow Wilson (wikipedia)

In any case, the proposed reforms would end anonymous holds (un-anonymous holds could still happen).  In order to sustain a filibuster, the opposition, whether the minority party or a motley cadre of like-minded senators, would need to vote in the affirmative to sustain it and keep members on the floor to debate the issue.  While this would not change the arithmetic of cloture, it would require those opposing measures to show real conviction and not just anonymous objection.  The amount of time breaking a filibuster could, potentially, be driven down considerably.

Included in the rules, perhaps as a peace offering to Republicans (or a component Democrats are sure to like when their minority days return), the minority party will be guaranteed three amendments as will the majority.  Conceivably, the majority party may be able to side step this more easily, but armed with these amendments the minority cannot so easily complain they are being frozen out.

In a lot of ways these rules changes have come too late and perhaps because of that are not as far-reaching as some would like.  An important fact not often considered by Democrats and liberals disappointed by the reforms is that it will force some Senators to actually vote their conscience.  For example, in 2009, Republicans filibustered a defense funding bill.  Democrats knew three Republicans were huddling in the cloak room waiting to vote on cloture once it was safe to do so, i.e. Harry Reid got all 60 members of his caucus to vote for it.  It required Harry Reid to convert one philosophically reluctant Democrat and bring a dying Senator Robert Byrd onto the Senate floor.  The Democrats had 60 votes and then, miraculously, the three Republicans (probably Maine senators Snowe and Collins and maybe  Ohio’s George Voinovich, since retired) came out to vote to end debate.  Such a circumstance would be near impossible under the old rules.  The filibuster may win the day, but strategic voting could be the real loser.  

Class Photo Senate in 110th Congress (wikipedia)

Fundamentally, the Senate will remain a conservative body as intended.  However, the use of parliamentary techniques for the sake of obstructionism and not principle, as the above story illustrates, would be much more difficult and, if nothing else, public.

For now, the filibuster is in limbo.  The Senate was not scheduled to return to business until later this month anyway.  What will change the outcome most is whether or not the Republicans come to a compromise that Democrats actually like.  Generally, they have been opposed, especially to eliminating the filibuster on the motion to proceed or open debate.  That point has attracted the support of once and again Republican Senator Dan Coats of Indiana.  The other points have been derided as limiting free speech, when in fact the reforms would be demanding it.  Until the Senate returns, we can only speculate as to what will happen.