by Michael E. Hammond, former General Counsel Senate Steering Committee 1978-89
In Lyndon Johnson’s time, first-term senators were expected to be “seen and not heard.” They were expected to shut their mouths and learn how and why the Senate operated as an institution. And the prospect that senators who have no idea what they’re doing would take it upon themselves to restructure the nature of the Senate would have been considered ridiculous by the likes of Lyndon Johnson.
But now, a group of first-termers –- frustrated that the Senate will not give them every single legislative fragment they desire -– has proposed to abolish all of the Senate rules at the beginning of the 112th Congress on January 5. Like the House, the Senate rules would vanish by a questionable ruling from the Vice President, except for those rules adopted by majority vote.
Ironically, the youngsters call their corrupt gambit the “constitutional option” -– after a similarly ill-advised effort by Republicans in 2005 to abolish the Senate rules by fiat in order to facilitate the approval of GOP judicial nominations.
To begin with, both efforts are a violation of the Standing Rules of the Senate.
In 1959, in exchange for establishing a two-thirds across the board cloture requirement, the Senate amended its rules to reafirm that it was a “continuing body” whose rules did not expire when it adjourned sine die at the end of a Congress.
We are presently being told that, now that Democrats have eaten their parliamentary meal, they are not interested in paying the check.
But, although neophytes like Senators Merkley and Udall of New Mexico don’t have the historical perspective to look way, way back to 2005, we have been down this road before. And, the Republicans’ use of the “constitutional option” -– roughly the same procedural tactic now being proposed –- was just as stupid as the “constitutional option” now being advanced.
Ironically, when the shoe was on the other foot -– with Republicans wanting to abolish the Senate rules by fiat in order to roll over the minority -- outlets like the Washington Post understood its liabilities. Said the Post on May 8, 2005, concerning the GOP’s “constitutional option”: “But we oppose the nuclear option for another reason, too: It’s rarely a good idea to fashion long-term institutional change for short-term tactical benefit. ... Only now that [Democrats] are in the minority have they seen the virtue –- not to mention the Founders’ handiwork –- in minority obstructionism.”
So the Republican effort was as stupid as the Democratic proposal now is.
But, say Senate non-experts like the Nation’s Katrina vanden Heuvel, “the filibuster was used more in 2009 than in the 1950s and 1960s combined.”
Just because Harry Reid files a cloture petition doesn’t mean that there is a filibuster.
The civil rights filibusters in the 1950s and 1960s lasted for months –- and went on year after year after year.
Increasingly now, Harry Reid files cloture on motions and bills immediately after they are pending. He puts an “amendment tree” in place –- meaning that he uses his preferred recognition to file so many amendments that Republicans are precluded from offering any amendments at all. Then he uses cloture to prevent Republicans from ever offering amendments.
The Senate floor thus became a House-like exercise in considering one Democratic-base-solidifying bill after another –- with no votes for Republicans, other than those minor amendments which Reid graciously allows them through a “unanimous consent” agreement.
This is not the way the Founders intended for the Senate to operate. Nevertheless, this has been a pretty sweet deal for Reid and Senate Democrats. So let me ask them this: With 23 Democratic Senate seats up in 2012, do Reid, Merkley, Udall, McCaskell, & co. really want to take the risk of turning the Senate, on January 5, into the “House on steroids”?
I promise you this: If 2012 is a “Republican year” –- and it may be -– I will urge that the first piece of legislation in the 113th Congress be a composite bill to repeal every major piece of Big Government legislation from the Obama administration, most significantly, ObamaCare.
All of the legislative “achievements” which the Merkleys and Udalls achieved through their sleazy manipulation of the Senate rules will be gone in the wink of an eye.