A Warming Saucer

Senate Majority Leader Harry Reid (D-NV) removed his finger from a nuclear detonator Thursday night

Reid’s been frustrated for years by filibusters and delaying tactics from the minority. He’s felt it stunted the ability of the Senate to accomplish even the most-basic of functions. Of course, when Republicans controlled the Senate, then Majority Leader Bill Frist (R-TN) felt the same way as Reid.

But lately, Reid threatened a fundamental change in the Senate. It was decried by some as the “nuclear option” because it would so violently pulverize the essence of what makes the Senate a unique institution: diminishing some rights of senators to filibuster.

Reid didn’t go nuclear this week. Reid, Senate Minority Leader Mitch McConnell (R-KY) and a bipartisan coalition of senators crafted a compromise to limit some filibusters and dilatory tactics – but preserve the rights of the minority to block measures and slow things down.

For starters, here’s a primer on how a filibuster works in “The World’s Most Deliberative Body.”

It’s best to start with the Founders.

If you remember nothing from this essay, take away the following: the Founders were suspect of power. Rather than centralizing authority around a monarch, the Founders crafted a system where power was diffuse. They not only dispersed power between the president and Congress, but distilled it in the legislative branch, too. They created a system with two legislative bodies, not one. And they made sure that the House and Senate operated in stark contrast.

Members of the House are elected at two year intervals. The makeup of the House is expected to reflect the mood of the country at the moment. Take a look at the House elections of 2006, 2008 and 2010. Democrats regained control of the House in 2006, bolstered their majority in 2008 and gave it all back in the tea party wave of 2010. In addition, the Founders developed the House as a “majoritarian” institution. A determined majority, along with the blessing of the House Speaker, can move any piece of legislation it’s capable of and the minority has little say. In fact, with 435 members, the opportunity to debate and try to alter legislation through the amendment process is governed by the powerful Rules Committee. The Rules Committee serves as a gateway to the House floor. It sanctions what amendments (if any) are in order to a bill and allots debate time.

It doesn’t work that way at all in the Senate. The Senate’s quintessence is that the minority controls some of the levers. And unlike the House, the Senate features unlimited debate and a potentially free-wheeling amendment process. Unlike the House, the Senate is a body of equals where the rights and privileges of each senator are given utmost deference. That’s not the case at all in the unwieldy and occasionally raucous House of Representatives.

There’s a seminal story about George Washington and Thomas Jefferson having coffee. Some of the Founders simply couldn’t grasp the concept of a Senate. Washington then poured some of his coffee into a saucer. Jefferson asks why he does that. Washington replies to let it cool, adding that the Senate is saucer where the House’s hot coffee cools.

So how does this apply to filibusters?

Conceivably 99 senators could be in favor of something. But all it would take is a sole senator to gum up the gearboxes.

The term filibuster is a blend of Spanish and Dutch. “Filibustero” and “vrijbuiter” were pirates and robbers who operated in the Caribbean.

With that in mind, it’s not hard to understand why some view the word “filibuster” as pejorative. After all, is a senator “filibustering” a bill or a cabinet nomination? Or, with the Senate’s “unlimited debate” provisions, is he or she merely exercising their prerogatives?

Therein lies the rub. That’s because a “filibuster” is hard to define.

There are different types of filibusters. Ironically, to the layperson, the best-known method of filibustering is the least common. Most are familiar with Jimmy Stewart in Frank Capra’s classic “Mr. Smith Goes to Washington.” Stewart’s character assumes the floor and speaks for hours on end until collapsing from exhaustion. In real-life, the late-Sen. Strom Thurmond (R-SC) holds the record for holding the floor the longest. In 1957, Thurmond spoke for just over 24 hours straight in an effort to block the Civil Rights Act. Thurmond eventually ran out of things to say and began reading from a telephone book.

There are more contemporary examples of senators commandeering the floor for lengthy periods. Former Sen. Alfonse D’Amato (R-NY) did this in 1992 to protest Smith Corona’s decision to shift typewriter jobs from New York to Mexico. Other examples of seizing the floor for hours on end include Sen. Bernie Sanders (I-VT) in 2010 and even Harry Reid when he was the Minority Whip in 2003.

But the most prevalent form of filibuster is the one that’s hard to see.

As stated earlier, the Senate is a body of equals where the rules sometimes favor the minority. That’s precisely what’s frustrated Reid and Frist. A minority of senators have been able to jam up bills by simply exercising their rights as senators. This is how they’ve done it:

All senators must do to slow things down is “object.” Or better yet, even threaten to object. Rather than have a Rules Committee like the House (it should be noted that the Senate does have a Rules Committee, too. But its function couldn’t be more different from its Congressional cousin in the House), the Senate accomplishes much of its business by “unanimous consent” or “UC” in Washington-speak. In other words, if everyone agrees, the Senate may “unanimously consent” to debate such-and-such a bill tomorrow. Or it will allow three hours of debate on that measure and entertain five specific amendments, but no more. One could even make the sun rise in the west if they secured the unanimous consent of the United States Senate.

But if you can’t get across-the-board sign-off, there’s trouble. This doesn’t just apply to ending debate on a bill, but in this case, starting debate on a bill.

To wit:

Say the Majority Leader wants to debate a measure starting at 9 am tomorrow. He seeks unanimous consent to do so. But a small band, or even just a solitary senator objects to this unanimous consent request. The leader is stuck. So what happened? Is it a filibuster? Or is that small minority of senators who objected merely deploying parliamentary tools available to them?

Either way, the Majority Leader has a quandary. If he wants to bring that bill to the floor, he must do something about it.

The leader has two options. He could wait until the objectors are out of the chamber and propound his unanimous consent request again. But that rarely happens. The leader would have crossed a sacred line, forever injuring trust among members of the body. That’s because the objectors could just as easily pull a fast one when the Majority Leader wasn’t around and try to sneak something through when no one was watching.

When marooned in this parliamentary cul-de-sac, the Majority Leader usually files what’s called a “cloture petition.” That’s an effort to leapfrog over the minority “filibuster.” And keep in mind, sometimes these blockades are just not by the minority party, but periodically administered by a senator of the majority who has reservations, too. They may be concerned about how the measure affects his or her state or want to ensure that a provision is eventually added to the package.

Specifically in this case, the leader has filed a cloture petition to end debate on the “motion to proceed” to the bill in question. The objection is to the effort by the leader to “proceed” to the bill. And since there is an objection, the Senate cannot advance to actual debate on that measure.

The Senate simply can’t consider a cloture petition right away. It has to lay over for two nights so it may “ripen.” In other words, if the Majority Leader files a cloture petition on a Monday, the Senate cannot consider it until Wednesday. And only if the Senate conjures up 60 votes to “invoke cloture” may the body “proceed” to bona fide debate on the bill at hand.

A similar exercise is often used at the end of debate on a bill. Quite often, those same senators who filibustered the motion to proceed want to prevent it from coming to a final vote. So they force the leader to file yet another cloture petition, let it ripen for two days and then get another round of 60 votes to advance to final passage. Under most circumstances the last vote to pass a bill requires but a simple majority.

In other words, a leader may need two rounds of 60 votes to finish a bill, even if only a small minority of senators are opposed.

The entire process described above could take nearly a week to complete.

Quite a saucer for cooling coffee now, isn’t it?

But wait, there’s more.

Even after the Senate has invoked cloture, there’s still an opportunity for a senator to muck things up. There’s a phenomenon called a “post-cloture filibuster.” In other words, the Senate has invoked cloture, ending debate on the motion to proceed or the bill itself. But senators may want to delay even further. That’s because once cloture is invoked, senators are allowed up to 30 hours to continue to debate the issue or just lock up the floor.

This is one of the areas where the Senate’s new filibuster policy comes into effect. If senators wish to burn off those 30 hours, they have to actually assume the floor for most of it, Strom Thurmond-style. If they abandon the floor more than once, the Senate could advance immediately to the next order of business.

One of the other major changes comes on the cloture petition for the motion to proceed to a bill. Cloture petitions require the signatures of 16 senators. The new plan entails a coalition of 16 senators – eight senators from both parties, including the Majority and Minority Leaders – to sign the petition, too. In addition, the cloture petition on the motion to proceed would only need one night to ripen rather than the customary two.

Much of a change? That’s a matter of debate.

Freshman Sen. Elizabeth Warren (D-MA) characterized the new procedures as “some change in a body not accustomed to change.”

Sen. Rand Paul (R-KY) saw it differently.

“Senate Democrats succeeded in seriously weakening the greatest legislative body in the world,” Paul said.

Sen. Chris Coons (D-DE) declared the change would help “getting back to a more functional Senate” but added he wished “we would have gone one step further on the talking filibuster.”

Sen. Tom Harkin (D-IA) criticized the use of the filibuster by both parties. Harkin said neither Democrats nor Republicans have “clean hands” when it comes to filibusters.

“It’s a pure power grab to nullify elections,” blasted Harkin.

Bernie Sanders indicated that he did not “think the Senate should become the House. But the minority does not rule.”

Still, even the smallest changes in a body steeped in tradition such as the Senate are the equivalent of tectonic plate shifts. Members of the Senate’s old guard long defended these arcane customs. A reporter asked Sanders if the late-Sen. Robert Byrd (D-WV) and others would have backed these filibuster changes.

“They may not,” Sanders said.

Regardless, the saucer is a little warmer.