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Senate Democrats Trample Minority Rights

November 14, 2012

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Last week, Majority Leader Reid re-stated his ambition to abolish the use of the filibuster on motions to proceed. Under regular order, Senate rules providing for debate on motions to proceed cannot be changed by a simple majority vote. Majority Leader Reid should stick to his promise to follow regular order, abandon this power grab, and respect Senate minority rights.

A Change to Rules Must Follow Regular Order

Any assertion by Senate Democrats that a rules change would require a simple majority vote ignores the plain language of the Senate Rules. Under Senate Rule V, “the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” Senate Rule XXII says that to end debate on a motion to amend or change the Senate rules, “the necessary affirmative vote shall be two-thirds of the Senators present and voting.”

A Change to the Rules Will Change the Senate for the Worse

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Changing the rules as Leader Reid proposes would dramatically curtail the longstanding principle in the Senate of free and open debate. As a Senator, Barack Obama spoke out against the heavy-handed tactics the Majority Leader now seeks. He recognized that such a move would be “no fairer to a Republican minority than it is to a Democratic minority.” He also admonished his colleagues to “rise above an ‘ends justify the means’ mentality because we’re here to answer to the people – all of the people – not just the ones wearing our party label.” This remains true today.

In their bipartisan defense of the Senate’s tradition, Defending the Filibuster, Parliamentarian Emeritus of the U.S. Senate Robert Dove and Richard Arenberg cautioned that a change in the Senate’s rules, by going outside those rules, would render the body indistinguishable from the House of Representatives. They wrote: “If a 51-vote majority is empowered to rewrite the Senate’s rules, the day will come, as it did in the House of Representatives, when a majority will construct rules that give it near absolute control over amendments and debate. And there is no going back from that. No majority in the House of Representatives has or ever will voluntarily relinquish that power in order to give the minority a greater voice in crafting legislation.”

Democrats Have Demonstrated an Eagerness to Change the Rules

Last year, Majority Leader Reid went so far as to change the rules of the Senate outside of the regular order to empower himself and shut out Republicans from the legislative process. He did this using the “nuclear option” to change Senate procedures with a simple majority vote, despite his commitment earlier in the year not to use this tactic.

Specifically, during consideration of the China currency bill last October, the Majority Leader filled the amendment tree in order to prevent Republicans from offering any amendments before cloture was invoked. Once cloture was invoked, Republicans tried to exercise their rights under the Senate’s rules by offering motions to suspend those rules. The Senate Parliamentarian ruled the motions were proper, but Democrats simply used a bare majority to change Senate rules by establishing a new precedent that any such motions offered post-cloture would now be out of order. As a result, the Majority Leader was able to squelch completely the voice of the minority. 

Marty Paone, a former principle parliamentary advisor to Senate Democrats, said of the nuclear option: “It’s a can of worms they took down off the shelf … Hopefully they’ll put it on the back shelf and forget about it again.” 

The Senate Should Be a Forum of Free and Open Debate

The Senate is a unique legislative body, designed to guarantee that the minority party and the Americans it represents have a voice. Traditionally, this body functions well when the majority party works to find consensus with the minority party on the process and substance of legislation. Allowing the minority party to exercise its rights to debate and amend legislation should be the rule, not the exception it has become in recent years.

Senator Robert Byrd understood the importance of allowing for a full debate and amendment process in order to preserve the Senate as “the one place in the whole government where the minority is guaranteed a public airing of its views.” The Senate, he said, “was intended to be a forum for open and free debate and for the protection of political minorities.” He added, “as long as the Senate retains the power to amend and the power of unlimited debate, the liberties of the people will remain secure.”

A Hyper-Partisan Senate Is Where Extended Debate Is Most Needed

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To the extent that free and open debate might render the Senate ineffective at times, the remedy is, as Dove and Arenberg argue, for Senators to “rise above partisanship, but more importantly to recommit, in good faith, to solving the nation’s problems. This is not a problem that can be solved by rewiring the Senate’s rules.”

Majority Leader Reid should work with Republicans in a spirit of cooperation, rather than inject hyper-partisanship by ignoring Senate rules to force a change in the way the Senate operates. Simply allowing the minority to participate in the legislative process leads to consensus and accomplishment. This year alone, Republican cooperation has led to passage of:

  • JOBS Act
  • Export-Import Bank Reauthorization
  • Trade Adjustment Assistance
  • Postal Reform
  • FAA Reauthorization
  • Highway Bill

 Finally, Senate Democrats should remember the warning of Senator Harkin: “The majority party in the Senate, whether Democratic or Republican, has always been frustrated by the minority’s use of the filibuster. But I submit that frustration is the necessary byproduct of an effective system of checks and balances. It is the price we pay to safeguard minority rights.”