Monday, Nov. 26, 2012 | 4:06 p.m.
Filibusters come up so often in the Senate these days that it’s hardly news when lawmakers get stuck in a procedural standoff.
But for the past two days now, Sens. Harry Reid and Mitch McConnell stuck in a standoff over procedure, at each others’ throats over whether the rules on filibusters ought to be rewritten.
Technically, the filibuster is a long-standing Senate rule that allows any member, or group of members, to stall legislation by talking it to death. Recently, however, it’s been wielded as a procedural bludgeon by the political minority to both kill legislation and wrest control of the process from the majority.
And Reid has said he wants to curtail it.
“This is a big issue about the future of this country and how this institution ought to be cooperating,” McConnell shot at Reid, charging that Reid wanted to amend the filibuster procedure as a bold-faced, but ultimately shortsighted way of aggrandizing power. “What I think we need is an attitude change ... we don’t need to have a perpetual election in this country. It’s time we oughta be building collegiality and relationships, not making incendiary moves.’’
“The election is over,” Reid retorted. “And the American people ... acknowledged without any question that the message we delivered is valid: the Senate is a dysfunctional body caused by the Republicans.”
The filibuster traces its origins back to 1806 when Aaron Burr proposed it as a way to prevent the Senate leader’s ability to close debate and force a vote on a bill.
In the decades that followed, senators began to exploit the loophole to prevent or at least delay certain pieces of legislation from coming to a vote. For the last century, Senate leaders have confronted the filibuster through “cloture” votes, which require a 60-vote supermajority to end the filibuster and proceed to a vote on the particular bill.
Despite the longevity of the practice, the Senate filibuster is simply a custom the Senate imposes on itself. The filibuster rule appears nowhere in the Constitution.
And that is why Reid appears determined next year to get rid of at least part of it.
Every year at the start of the Congress, the Senate and the House have to approve the new rules that will govern their business over the next two years. Under current Senate rules, any new rule change has to be approved by two-thirds of the Senators in attendance.
But there’s a way around that requirement. According to a 1892 Supreme Court decision, the Senate needs only a simple majority to pass its rules.
If Reid resorts to a simple majority vote to end the filibuster on motions to proceed, he’ll be exercising what’s come to be known as the “nuclear” option — so called because it will blow up the customary practice for the Senate going forward for all time.
That was exactly what McConnell was verbally flailing against Monday.
“Any time, on any whim, any majority leader wants to change the rules, 51 votes!” he said, invoking everything from the Golden Rule to accusing Reid of trying to make a power grab and breaking “the rules to change the rules because he’s had difficulty getting on bills.”
Reid insisted he is neither breaking the rules nor destroying the filibuster, just limiting its use.
But Reid wouldn’t dispute that difficulty he’s had in bringing up bills is prompting his move.
In his many public statements since the election, Reid has spoken on more or less the singular theme of compromise. The election was a mandate, Reid has said, and repeated again Monday, to work together.
But Republicans, he then charges, aren’t getting the message.
Reid’s evidence for issuing that charge: A running tally of 348 filibuster threats by Republicans since he’s been majority leader six years ago. That’s compared to only one former Senate Majority Leader Lyndon Johnson faced when he as in charge.
Come the New Year, Reid made clear Monday, he plans to do what he can to limit its use.
Though it may seem anachronistic to bicker about such a procedural issue, concerns about the filibuster may not prove to be entirely out of place as Congress tries to hash out how to avoid the fiscal cliff.
If Congress cannot meet its Dec. 31 deadline, the filibuster discussion may end up preceding a final resolution on how to keep tax rates from rising, and sweeping cuts to the government from taking effect.
But there’s still five weeks until the deadline.