November 22, 2013

The Fundamental Shift in Senate Operation

“[T]he proper way to change Senate rules is through the procedures established in those rules, and I will oppose any effort in this Congress or the next to change the Senate’s rules other than through the regular order.”   -- Majority Leader Reid, January 27, 2011

Yesterday Senate Democrats took the brute force approach to governance and decided that it now only needs a simple majority vote to allow for confirmation votes of executive and judicial nominees. In so doing, Majority Leader Reid was able to seriously restrict the voice of the minority party. Here is how it happened.

Changes to How the Senate Operates

The United States Senate functions both pursuant to rules and the interpretations of them called precedents. One rule under which the Senate operates says debate can only be cut off with a vote of 60 Senators. The Senate rules also state that changes to this rule, and others, require 67 votes.

Senator McConnell: “Would the Chair confirm that currently the rules of the Senate provide that a proposal to change the Senate rules would be fully debatable unless two-thirds of the Senators present and voting voted to invoke cloture, which would mean 67 Senators voting in the affirmative if all 100 voted?”

The President Pro Tempore, Senator Leahy: “The Republican leader is correct.”

            -- Debate on the Senate Floor, November 21, 2013

When a Senate rule is interpreted, a new precedent is set which effectively preempts the rule being interpreted. Yesterday, Senate Democrats changed the precedent for the interpretation of one of the Senate rules designed to protect minority rights – the ability to extend debate. Thus, without actually changing the Senate’s rules, they were able to change the way the Senate operates regarding the 60-vote threshold to cut off debate.

The Process by Which It Happened

  • First, Majority Leader Reid called to reconsider the failed cloture vote on the nomination of Patricia Millet to the U.S. Circuit Court for the District of Columbia, which requires 60 votes.
  • Senator Reid asked for a ruling from the chair that actually only 51 votes were needed.
  • Because of the existing rule and precedents set on that rule over the years, Senator Leahy announced that 60 votes are needed.
  • Senator Reid then called for a vote to overturn the chair’s ruing, which only needed a simple majority to pass.
  • Once this passed, the previous precedent was overturned, a new precedent was set, and the 60-vote threshold was gone – all by simple majority.

The new precedent currently applies to judicial and executive nominations, excluding the Supreme Court.

Yesterday’s Change Will Change the Senate for the Worse

At this moment, Majority Leader Reid chose to inject hyper-partisanship into the way the Senate operates and rewire its rules. Yesterday’s decision by Senate Democrats to end the filibuster and put an end to democratic debate ushers in a post-bipartisan era where only the will of the President and the Majority in the Senate matter. For the Senate, an institution designed to guarantee that the minority party and the Americans it represents have a voice, nothing could be worse.

Issue Tag: Judiciary