'The intent of both proposals is to make the Senate more like the Senate'

By Dylan Matthews

This morning, I went to the latest in a series of Senate Rules Committee hearings on filibusters and holds. This one focused on two reform proposals, offered by Sens. Michael Bennet and Frank Lautenberg.

Bennet's proposal is quite sweeping. It would eliminate anonymous holds, limit holds without bipartisan support to two days, and limit all holds to 30 days. It would require 41 senators to vote to uphold the filibuster, reversing the current requirement that 60 senators vote to stop it. That puts the onus of organizing support on those who are filibustering. It would also try to encourage bipartisanship by allowing 45 senators to kill a filibuster if the filibuster doesn't have at least three members of the other party signed onto it.

Lautenberg's proposal is more modest. Called the Mr. Smith Bill (Lautenberg brought a cardboard image of Jimmy Stewart from the film to the hearing), the bill would allow the Senate majority leader to call an immediate cloture vote as long as there is no discussion occurring on the Senate floor and the deadline for amendments has passed. This would force filibusters to actually be conducted on the floor -- hence the "Mr. Smith" moniker -- if the opposition wants to take advantage of the two-day "ripening period" before the Senate can vote to end a filibuster.

Neither Lautenberg nor Bennet wants to eliminate the filibuster entirely. "The Senate can and must defend the rights of individual or small groups of senators," Bennet insisted. But members of the committee thought even the men's more limited measure might go too far. Committee Chairman Chuck Schumer was enthusiastic about Lautenberg's plan, calling it "ingenious," but was more measured on Bennet's, saying only that it was "extremely interesting" and acknowledging that Bennet had "worked long and hard" on it. Robert Bennett, the committee's ranking Republican (and no relation to Michael Bennet), expressed concern that the proposals would turn the Senate into the House, and wreak havoc on the Senate calendar by effectively establishing a one-track legislative process. Currently, while cloture motions are ripening, the Senate can conduct other business. Bennett expressed concern that Lautenberg's plan would prevent this, and stop the Senate's business in its tracks.

The three experts the committee had called then stepped in to quell his concerns. Gregory Koger, a professor of political science at the University of Miami and author of a history of the filibuster, disputed the point about legislative tracking. The Senate would function as usual under the Lautenberg proposal, he insisted, unless the majority leader decided to force on-the-floor filibustering. A one-track process would be optional, a way for the majority to exert pressure during a filibuster battle.

Koger was strongly supportive of the Lautenberg proposal, saying it, combined with the Senate's "Pastore rule," which requires debate to be germane to the topic at hand, would force filibusterers to defend their actions and increase the price of obstruction, putting it closer to what it was before the filibuster became a common tactic in the 1960s. Far from turning the Senate into the House, Koger insisted, its intent, like the Bennet proposal, is to "make the Senate more like the Senate." Koger also disputed the insistence of both Schumer and Tom Udall that the "constitutional option" of changing Senate rules by majority vote is only possible at the start of a Congress. Koger insisted that the Senate can stop its rules at any point and change them by a simple majority, and that given political considerations, this might be the only way the filibuster can ever be reformed. That said, given that there are not enough votes in the current Congress to pass a cloture requirement change by simple majority, even Koger's method might not work.

Barbara Sinclair, a retired political scientist at UCLA, did not endorse either proposal, saying it was her job to present relevant data and senators' jobs to strike a balance between, in her words, "deliberation and decisiveness." She did note, however, that the current system allows neither, creating the worst of both worlds. Sinclair's data are striking as always. In her most vivid example of how the filibuster has slowed the legislative process to a halt, she compared the percentage of bills passed by one house of Congress but not the other before and since the 103rd Congress (1993-1995). Before, 6 percent of bills passed the House but not the Senate, and 5 percent passed the Senate and not the House. Since the 1990s, only 1 percent of bills have passed the Senate but not the House, and a whopping 20 percent have passed the House but not the Senate. The emergence of the Senate as the main legislative bottleneck, then, is a fairly recent phenomenon.

The most interesting witness, however, was Elizabeth Rybicki, an analyst at the Congressional Research Service. Rybicki's presence itself was unusual. CRS analysts do not usually testify before Congress, and Rybicki only appeared by special request of the Republicans on the committee. Even then, she could not say anything that even looked like an opinion. Stating her parameters, Rybicki recalled that when her mentor at CRS was asked what he thought about a piece of legislation, he replied, "I'm not allowed to think."

All the same, Rybicki had a point to make, and a persuasive one: the Lautenberg and Bennet proposals are too vague. For example, Lautenberg's proposal works by allowing the majority leader to "move the question" on cloture. Rybicki noted that there is no such motion in the Senate rules. It is clear enough what Lautenberg meant, but the bill as written would be hard to implement. Similarly, Bennet's bill seeks to regulate "holds," which are not a formal process in the Senate. They occur whenever a member tells the leadership he will object to a unanimous consent request regarding a bill or nomination. The senator typically will not even have to object on the floor; contact with the leadership is enough. To eliminate secret holds, then, one would have to require senators to disclose certain types of communication with the Senate leadership -- which types, exactly, Bennet's proposal does not specify. To require holds to be bipartisan, and to expire, would involve tinkering, removing the requirement of unanimous consent itself for certain actions.

The most interesting ambiguities Rybicki identified had to do with Bennet's proposals to increase the cloture-blocking requirement to 45 if support for breaking cloture is sufficiently bipartisan, or if opposition to it is not. Bennet's proposal says this would occur after three "attempts" to invoke cloture. Does this mean that the majority leader could file four cloture motions on the same day, wait two days, and then have them in a row, with the last requiring 45 votes to break? Or could the leader only file another motion after a vote has failed, in which case the earliest the requirement could rise would be nine days after the first filing?

What's more, the proposal determines whether a proposal is bipartisan by having the Majority Leader submit a list of members of his caucus to the Congressional Record, a list he can revise at any time. Let's say, then, that the current GOP, along with Ben Nelson, Mark Pryor and Mary Landrieu, decides to filibuster a bill. They would only have 44 votes, but they would have enough Democratic support to prevent the cloture-blocking requirement from rising to 45. Could Harry Reid submit a new caucus list to the Congressional Record, not including Nelson, Pryor, and Landrieu, see the requirement rise to 45, and break the filibuster? Under the current wording of the Bennet proposal, this seems to be possible. Far from encouraging bipartisanship, then, Bennet's proposal could in effect raise the cloture-breaking requirement to 45, with no additional wait, and no additional requirements.