Promoted from the diaries by Bill S.

by Michael E. Hammond, former General Counsel Senate Steering Committee 1978-89.

One would think it would be pretty easy to understand why conservatives wouldn’t want to give Harry Reid more power.

Reid has corruptly used the Senate rules to cram liberal legislation like ObamaCare down the American people’s throats. And, now that his Democrats have been repudiated in the elections, he wants even more power to cram even more liberal legislation -– thereby nullifying the November election results.

Nevertheless, we’re still getting Fox interviewers asking questions like: “What’s wrong with a Mr.-Smith-goes-to-Washington-filibuster?”

So here’s, specifically, what Senator Udall of New Mexico and nine other Democrats are proposing, what’s wrong with what they’re proposing, and a GOP alternative:

MR. SMITH GOES TO WASHINGTON

WHAT THEY’RE PROPOSING: If Reid files cloture on a measure –- and cloture is not invoked -– the Senate will continue debate on the issue on which cloture failed, but it’s no longer in order to ask for quorum calls or make motions. If, at any time, a senator stops talking and another senator is not on his feet screaming for recognition, cloture will be “considered invoked” even though few senators support it.

WHAT’S WRONG WITH THAT?: First, under current rules, Reid can force a “Mr.-Smith-goes-to-Washington” filibuster anytime he wants by (1) keeping the Senate in all night, (2) keeping Democrats on the floor, and (3) eyeballing a quorum from the Chair.

Second, Udall & co. are so inexperienced they have proposed something which is potentially disastrously dysfunctional. They may want to consider, for example, what would happen if Republicans begin filing lots of cloture motions.

Third, the issue of quorum calls is nothing new. When I first visited the Senate in the spring of 1967, the Senate was in a prolonged quorum call, with Everett Dirksen roaming back and forth across the Senate floor alone.

Fourth, the problem is not so much that Republicans refuse to debate, but that Harry Reid refuses to let them. Increasingly, he will file cloture on as many as four bills simultaneously and move off of all four without any debate whatsoever.

Fifth, Reid would use this mechanism to “invoke cloture” on far-reaching liberal legislation by punishing the minority, even though he had far fewer than 60 votes. The 60-vote requirement would become meaningless.

REPUBLICAN ALTERNATIVE: When Reid files a cloture motion, the Senate should stay on that bill or motion continuously until cloture is voted on.

MOTIONS TO PROCEED

WHAT THEY’RE PROPOSING: There would be two hours, equally divided, on motions to proceed –- and Reid and McConnell would control the time.

WHAT’S WRONG WITH THAT?: The ObamaCare fight should highlight the importance of being able to filibuster the motion to proceed to a bill. Once the motion to proceed is adopted, Reid can begin to buy votes by offering amendments (Cornhusker Kickback, Louisiana Purchase, etc.). The fight over the motion to proceed is the last opportunity to fight an awful bill prior to the vote-buying stage.

REPUBLICAN ALTERNATIVE: You can’t withdraw a motion to proceed if you’ve filed cloture on it.

HOLD LETTERS

WHAT THEY’RE PROPOSING: No senator can object to a “unanimous” consent request on behalf of another senator without naming the other senator.

WHAT’S WRONG WITH THAT?: It requires Republicans to plan for unanimous consent requests they aren’t able to anticipate.

At any time, Harry Reid can walk onto the floor and ask for “unanimous” consent on some issue of monumental importance which is not yet on anyone’s radar screen. The junior Republican who is assigned to monitor the floor and protect Republican interests has a choice: (1) he can “own” the objection against a bill he knows nothing about, or (2) he can allow the GOP to be irreparably damaged on an issue of earth-shattering importance by the so-called “unanimous” consent of the Senate.

REPUBLICAN ALTERNATIVE: Require that all unanimous consent requests be published 24 hours in advance in the Record.

TRUNCATED FILIBUSTERS ON NOMINATIONS

WHAT THEY’RE PROPOSING: Post-cloture time on nominations is shrunk from 30 hours to 2 hours.

WHAT’S WRONG WITH THAT?: This could theoretically shrink debate on a Supreme Court nominee to a total of two hours.

There are several reasons for this: First, a motion to proceed to a nomination “as in executive session” is non-debatable. Second, increasingly Reid is adopting a motion to proceed to a matter, filing cloture on the matter itself, and moving onto another issue without allowing any debate. The issue is automatically jerked back two days later when it’s time to vote on cloture, but there’s no debate in between. Third, if post-cloture time for debate is shrunk to two hours, this may mean that total debate time will be two hours.

We may see a Supreme Court nominee who will be the pivotal vote on ObamaCare in the next two years. The RIGHT to debate on that nomination should surely be more than the guaranteed two hours proposed by this rules change.

REPUBLICAN ALTERNATIVE: Motions to proceed were made non-debatable by a sleazy ruling allowing the Majority Leader to combine the non-debatable motion to proceed to executive session with the debatable motion to proceed. Motions to proceed to nominations and treaties should be debatable again.

“RIGHT” TO OFFER AMENDMENTS

WHAT THEY’RE PROPOSING: At the end of post-cloture debate, right before the Senate votes on final passage of a bill, Reid and McConnell would each have the right to offer three “germane” amendments.

WHAT’S WRONG WITH THAT: First, Reid would have an absolute right to offer his composite vote-buying amendment, while people like DeMint would probably be shut out.

Second, the definition of what is a “germane amendment” has evolved from a 1982 (criminal code recodification fight) definition which allowed almost no amendments to be in order to the current situation –- where “germaneness” has a politicized definition exercised by the parliamentarian with no objective standard. Republicans would be shut out of any meaningful amendments, while Reid would be allowed to do whatever he wanted. This is far worse than no change at all.

REPUBLICAN ALTERNATIVE: If a senator has offered an amendment, no one in his party may offer another amendment until the other party has had an opportunity to offer an amendment.