Senate Republicans have one option after Dems limit filibuster

The Senate will move quickly to approve anything the President wants. The Republicans still have one tool.
Photo: Brooks v Sumner, by JL Magee, 1856

ANDERSON, Indiana, November 24, 2013  Senate Majority Leader Harry Reid (D-NV), and President Obama, have now decided that one-man rule should govern Obama’s fundamentally-changed America.

And Republicans are wringing their hands.

SEE RELATED: History of Nuclear decisions: Fallout from Senate Dems going ‘nuclear’

The move to limit filibusters was originally a Republican idea. However it is the Democrats, frustrated by playing by the Senate rules, who actually changed the rules.

The filibuster was always informally contained in the Senate rules, as each member was allowed to speak on any subject as long as he wanted to. Prior to the Civil War, it was used famously by Henry Clay, among others. Clay would talk until other members went home, effectively tabling bills.

The idea of unlimited access to the floor was formally modified by Senate rules in 1917, when Democratic President Woodrow Wilson was having trouble with his war agenda. Things, decision-makers said then, had to get done, so the Senate enacted the cloture rule, which would allow a super-majority of the Senate to shut off any given speaker. In four decades, four cloture votes were taken. Over a hundred were invoked in each of the last two Administrations (Bush and Obama).

In 1957, as postwar politics heated up, then-Vice President Richard Nixon (the President pro tempore of the Senate under the Constitution) offered the idea that his office entitled him to offer a rule change. Rule changes aren’t subject to filibustering; they pass on a majority vote.

SEE RELATED: Harry Reid goes nuclear: Political comity is now dead

Nixon argued that as President pro tem, he could propose the rule change, the majority could pass it, and the filibuster rule would evaporate.

Forty-six years later, then-Senate Majority Leader Trent Lott (R-MS) proposed a similar “nuclear option,” which languished until 2005, when it again received serious debate, as then-Majority Leader Bill Frist (R-TN) stirred the pot. Democrats and Republicans got together and agreed to stop filibustering President Bush’s judicial appointments and the logjam was cleared without formally stopping the filibuster.

In 2005, Democratic Senate leaders Joe Biden, Dianne Feinstein, and Harry Reid, among others, were joined by freshman senator Barack Obama in decrying the proposed move as a fatal attack on all that was good and holy in the Senate. They warned that if Bill Frist and Vice President Cheney were able to steamroll this rule change, that the Republic would quickly devolve into one-man rule, the very essence of tyranny.

But now the shoe is on the other foot. Republicans are blocking Obama’s court appointments, threatening filibusters on virtually all of them. The Democrats are in the majority in the Senate. They control the Executive Branch. Joe Biden isn’t a senator any more, he’s Vice President of the United States and President pro tem of the Senate, like 1957’s Nixon or 2005’s Cheney. All the earlier Democratic opposition to Frist’s 2005 attempted power grab has turned to support it while and all the Republican enthusiasm has also turned around.

SEE RELATED: Obama fans: Would you trust Dick Cheney with the power given to Obama?

This of course is precisely why such rules should not be lightly changed.

Senate Democrats are used to winning. A majority of them have never been in the minority party in the Senate. They have no idea what it is like to be sitting where Republicans are today. And Republicans act like the minority, even when they’re in the majority.

Republicans don’t have a nuclear option available, but they still have a few hand grenades.

One that may be partially effective would be to insist on quorum calls for every vote. The Senate’s constitutional quorum is anything over 50%, so merely taking a walk, as Democratic state minorities in Wisconsin and Indiana have done in recent years, won’t work. Besides, the Senate’s Sergeant at Arms has been empowered since 1877 to arrest non-compliant senators, as happened once — to Bob Packwood (R-OR) in 1988. But anyone who watches C-SPAN knows that most Senate business proceeds before a near-empty chamber. It may be possible for Republicans to force full Democratic attendance by not showing up, thus allowing Democrats to own the additional disasters they have planned, to top Obamacare. Or Republicans could insist on a quorum call for everything.

A quorum, in that august and honorable body, is “assumed” unless a vote is formally recorded. Many votes are by voice, and the actual count is irrelevant, made up by canvassing members’ staffs and later duly recording them in the Federal Register. If Republicans called for a quorum on every vote, and the Republican membership didn’t show up, it would at least force Democrats to push away from the campaign table, most of the time.

According to the Rules of the Senate, Rule VI,
1. A quorum shall consist of a majority of the Senators duly chosen and sworn.
2. No Senator shall absent himself from the service of the Senate without leave.
3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate.
4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.”

According to the paper, “Voting and Quorum Procedures in the Senate” [ 7-5700, 96-452; August 19, 2013], “A Senator wishing to prevent a matter from coming to a vote need not engage in extended debate.

“One reason is that if a quorum—51 Senators, assuming no vacancies—is not present on the floor, the opponent may instead simply take steps to trigger a live quorum call, and if a quorum does not respond, the Senate can only adjourn or take steps to secure the attendance of a quorum.

“Adjournment serves the purposes of the opponent, who is only trying to delay or prevent a final vote on the matter. As a result, if a numerical majority favoring a legislative proposal wanted an opponent to remain physically present on the Senate floor engaging in a filibuster, that majority, or most of it, would itself have to remain on or near the floor to ensure that a quorum could be established at any point required. Even if a majority of the Senate does so, moreover, opponents need not engage continuously in debate to forestall a vote on passage of a measure; they can also filibuster by offering various motions and, if sufficiently numerous, by forcing multiple rollcall votes.”

Will Republicans be able to handle the heat if they refuse to be steamrolled in the chamber? Will the Democrats have them arrested and dragged into the Chamber to vote?

Today’s Republicans generally have very little tolerance for heat, but wouldn’t a little heat now be better than a meltdown, with them all there, sharing their useless votes?

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Tim Kern

Tim Kern taught economics for fifteen years, and discovered that understanding life is easy; it’s recognizing reality that takes practice. He holds a music degree, and later earned an MBA in finance from Northwestern University. He has lived across the US, and now makes his home in Anderson, Indiana.

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