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Senate Rules Changes Slipping Away As Media Dissembles

Senate Building - Capitol

View of the Senate wing of US Capitol building. (photo: vessego)

Paul Kane has a piece in Sunday’s Washington Post that seems to be the kind of take on the Senate rules reform fight you’d expect someone who hasn’t been following it at all and gets most of his information from lobbyists. He accepts the contributions of senior Senate aides that the effort led by some Democrats to change the Senate rules will fail because “party leaders want to protect the right of the Senate’s minority party to sometimes force a supermajority of 60 votes to approve legislation.” But of course, the rules changes on the table would still allow that right. This confusion may indeed sink the Merkley/Harkin/Udall effort, but it’s a willful confusion – it’s perfectly clear that the rule changes would make it easier to dispense with legislation with broad support, and make it harder (but nowhere near impossible) to sustain all other filibusters, by making the filibuster an actual instead of an implied one. But Kane on multiple occasions says Udall, Merkley and Harkin want to “nullify” cloture. I don’t know what he’s talking about.

The article claims that Udall is attempting a “never-before-tested option” of changing the rules for the new Congress by majority vote. But the whole Udall proposal is predicated on the fact that there’s precedent from three Vice Presidents – Nixon, Rockefeller and Humphrey – to change the rules by majority vote. Kane says that ruling was “never put into practice,” but this is a semantic difference – the VPs ruled in favor of it, any “test” beyond that is superfluous.

That’s not to say that the end result of Kane’s article is wrong. The AP confirms that Lamar Alexander and Chuck Schumer are negotiating on what would be almost a complete whiff on Senate rules changes.

Senior senators are negotiating to reduce the 1,400 presidential appointments subject to time-consuming Senate confirmation, hoping to streamline a system that has frustrated administrations of both parties, according to officials familiar with the discussions.

These officials said that 100 posts or more could be dropped from the list if discussions between Sens. Chuck Schumer, D-N.Y., and Lamar Alexander, R-Tenn., result in an agreement that gains the support of the rank and file in both parties. Judicial appointments would not be affected, nor would the most senior positions at Cabinet department or independent agencies.

In addition, the two men have discussed curtailing the right enjoyed by individual senators to block action on a nomination or legislation anonymously for up to five days. This rule is widely flouted.

A hundred posts out of 1,400 won’t really unclog the executive calendar for nominations. And banning secret holds, which is what the last paragraph is about, is the most useless of the changes that Udall and his colleagues have put forward. Under these “changes,” you’d still have enough nominations needing confirmation to bring the Senate to a halt, and you’d still have the ability for a minority to block any nomination or legislation and slow down even items with broad support.

I would say that articles like Paul Kane’s play a major role in why we’re likely to see no changes after the most obstructionist Senate, as a matter of raw filibuster actions, in US history. The media don’t know Senate procedure, doesn’t understand Senate procedure, and can’t articulate Senate procedure to readers. As a result, the most skittish Democrats get no cover for changing the rules, read in the media untrue statements about what’s on the table, and then their general lack of spine kicks in. The filibuster, which if you look at history blocks progress far more than it stops regress, serves establishment ends. And so their muddling the issue serves that as well.

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David Dayen

David Dayen