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Senate Rules Must Be Reformed in January

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The first day of a new Congress is generally filled with ceremonial events and receptions. But the first day of the next Congress, January 5, 2011, could be the most important legislative day of the entire session.

The day a new Senate convenes, fifty-one Senators can set the rules for the body with a simple majority vote. January 5, 2011 is the day that the Senate should adopt rules that limit the ability of the minority to obstruct and circumvent the will of the majority by using the filibuster and secret holds.

For the first time in years, there is a major movement afoot among Democratic Senators to make those changes. That movement is fueled by growing frustration among Democratic voters at the way Republican leader Mitch McConnell calls so many shots in the Senate, even though Democrats are in the majority. Senate Majority Leader Harry Reid is forced by the Senate rules to get 60 votes for almost any substantial piece of legislation. Democrats want their members of the Senate to stand up and fight back.

Just as important, a clear message of the November election was the demand from swing voters that Washington takes action and gets results -- especially when it comes to the economy. Voters want an end to partisan gridlock.

Frustration among Democrats has boiled over in response to the deal that President Obama was forced to cut with Republicans in order to guarantee critically needed economic stimulus for the fragile economy. To pass critical new economic stimulus programs and the continuation of others like Unemployment Compensation, and a number of middle class tax cuts, Republican leaders demanded a two-year extension of the Bush tax breaks for the wealthy.

In addition, they threw in a demand that the inheritance tax, which was due to return to its pre-2001 levels at the first of the year, be cut as well. Estates under $5 million for individuals and $10 million for couples would be exempt entirely. And the rates paid by the multi-millionaire families that remained would be cut to 35 percent. This proposal would save hundreds of millions of dollars for the sons and daughters of multimillionaires. Democrats in Congress were outraged that to assure aide to the unemployed, the Paris Hiltons of the world would be handed millions of dollars by the Republicans leadership.

Many everyday voters simply can't understand why, if the Democrats control the White House, the Senate -- and at least for the next few weeks, the House -- they can't pass gravely needed economic stimulus without doing this kind of deal with Republicans. How is it that the Republican leaders could hold unemployment and middle class tax cuts hostage to the needs of the rich?

The answer is the Senate Rules. Democrats currently have a majority of 58 votes in the Senate. But to pass anything meaningful they need a super-majority of 60. That's not because the Constitution requires such a super-majority. It's because of rules adopted by members of the Senate -- that have been abused by the obstructionist Republican minority.

Republicans weren't going to give votes to any measure for economic stimulus unless tax breaks for the rich were part of the package.

Infuriating? It's just the latest in a series of successful Republican attempts to obstruct action by the majority.

Just think how different the last two years would have been if every measure did not require 60 votes:

  • Congress would have passed a substantially larger economic stimulus plan in early 2009 that could have materially increased the rate of economic growth and put millions of Americans back to work. Not only would that have benefited everyday Americans, it would have translated into much better Democratic performance in last month's elections -- and all that implies over the next two years.
  • The health care reform bill would have included a Public Option that would have helped control health care costs, cut the long-term Federal deficit, and -- because it was one of the most popular elements of the president's health care reform -- would have increased the popularity of the entire measure.
  • Comprehensive Immigration Reform would have passed the Congress and been signed into law.
  • "Don't Ask Don't Tell" would have been repealed.
  • And, of course the tax cuts for the Middle Class and unemployment insurance would have been continued -- and tax breaks for the wealthy would have been discontinued. Who knows, Congress might even have been able to pass legislation imposing a large tax on the outrageous, obscene multi-million dollar bonuses being paid by Wall Street to its top producers -- just in time for Christmas.

In fact, the current Senate rules not only empower minority Republicans, they also empower Wall Street and other special interests. It's very hard to get a 60- vote super-majority for any major policy in America. The 60-vote super-majority means that special interests can concentrate their efforts -- and contributions -- on recruiting just a few Senators who can then prevent the Senate from taking any action that compromises their interests. It empowers political "hostage takers" who represent the most powerful elements of corporate America rather than the majority of Americans.

Senators are talking about a number of key ways to change Senate rules that would limit the power of the minority to obstruct the will of the majority.

Senator Tom Harkin has proposed a plan to lower the number of votes needed to cut off debate (to end a filibuster) gradually over a number of days. The first day it would take 60 votes. Two days later it would take 57 votes. Two days after that, 55 votes -- then 53 and finally 51.

Others have proposals to shift the burden of maintaining a filibuster to those who want to prevent a majority vote. You might, for instance, require that at any time, at any hour, any member could ask for a "Cloture Call,", much the same way they can ask for a quorum call today. If 41 Senators did not report to the floor to answer that they wished to sustain the filibuster, then the filibuster would end. Such a rule would require those who want to filibuster to actually filibuster -- and to constantly provide the votes to sustain it.

Right now the burden is on the majority to muster the 60 votes necessary to end a filibuster -- not the other way around. That task is made more difficult because all the minority needs to do is call for a quorum, and if 51 Senators do not report to the floor, the Senate is simply adjourned until a quorum is once again present. Then the "filibuster" can resume. Right now there is no incentive for the minority not to filibuster everything. Under the proposals of those who want to shift the burden of maintaining a filibuster to the minority, any quorum call would automatically trigger an end to the filibuster.

Reformers have proposed a variety of other changes, such as ending filibusters for nominations, eliminating onerous time requirements intended to make it impractical for the Senate to consider controversial issues or nominations, and ending "secret holds".

What are the arguments made against changing the Senate rules?

Some Democrats are worried that if the Republicans once again take control of the Senate in 2012, they would be unable to use the filibuster to stop right wing initiatives. The problem with that argument is that no one doubts that if the Republicans took control of the Senate and felt they needed to change the rules to have their way, they would change the rules in a heart beat. One thing you have to admire about the Republicans, they do what ever is necessary to achieve their goals. Nothing would stop them from ending the filibuster and changing other Senate rules as well, if they stood in their way.

In fact the Republicans already threatened to take precisely that action in the confrontation with Democrats over judicial nominees in 2005. The Republicans didn't do it then, because Democrats agreed not to use the filibuster "except in extra-ordinary circumstances".

Other Democrats believe that the current Senate rules foster bipartisanship. In fact, just the opposite is true. The 60-vote rule gives the Republicans every incentive to try to kill legislation. If bills required a simple majority, the minority would be forced to negotiate if they wanted to affect the shape of legislation since they would no longer have the power to obstruct them outright.

And finally there are some Senators who argue that the Senate is governed by "continuing rules" that can only be changed by 67 votes. The Supreme Court ruled years ago that the only limitation imposed by the Constitution on the rules of Congress is that a quorum of the Senate is 50 percent plus one. And of course the idea that previous Senates can bind the rules of the current Senate is ridiculous on its face. What if one Senate passed a rule that all bills required 80 percent of all votes and that it took 100% of Senators to change them? That would effectively prevent the Senate from taking action on anything the least bit controversial. Would it then be impossible ever again to change the Senate rules to make it function once again without unanimous consent? Obviously that's absurd.

In fact, if fifty-one Senators vote yes on a new package of Senate rules and the Vice-President, who is Presiding Officer of the Senate, rules that they acted properly, those will be the new Senate rules, since the Courts have no basis to challenge them.

Next year the Republicans will have ironclad control of the House. It would be outrageous if Democrats allowed a minority of Republican Senators to use the current rules to limit what the Democratic majority can do in the Senate. If they are not changed, the Republicans will use the current Senate rules to call the shots in the Senate as well as the House -- and to materially limit the president's ability to enact a Democratic program. The process of negotiation between Republicans in the House and Democrats in the Senate will become a negotiation between a House that speaks with a clear Republican voice and a Senate where the Democratic majority and Republican Minority effectively act as co-equals.

So if you're furious at how Mitch McConnell's Republican minority is holding America hostage, the time has come to do something about it. Ask your Senators to support changing the Senate rules that allow the Republican minority to obstruct the will of the majority.

Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on Amazon.com.