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John E. Sununu

Democrats err in bid to muzzle senators

Tom Harkin is trying to make the Senate more like the House. Tom Harkin is trying to make the Senate more like the House. (Getty Images)
By John E. Sununu
January 3, 2011

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THIS WEDNESDAY at noon, 33 senators will have their oath of office administered by Vice President Biden in a ceremony that hasn’t changed much in 220 years. Each will sign a book recording the names of those who have held the distinguished title of US senator. Then the arguing will begin.

Now, in the world’s greatest deliberative body, the arguments are conducted with the maximum attention to decorum and precedent, but they are arguments nonetheless. Senators will first choose a leader, and then adopt the rules governing debate.

At that point, it is quite likely that proponents of “filibuster reform’’ led by Senator Tom Harkin of Iowa will pursue a rule change to allow the majority to cut off debate with a simple 51 vote “cloture motion’’ rather than the 60 votes required today. This, in simple terms, would make the Senate look a lot like the House of Representatives.

Given that open and unlimited debate is the hallmark of the Senate, this would constitute a dramatic and unprecedented rewriting of the rules. In fact, for 120 years, there was no provision at all to curtail debate so long as senators wished to be heard.

For a moment, ignore the whiff of hypocrisy in the air. Democrats like Harkin had little interest in this issue when his party was using the filibuster to defeat tort reform or prevent judicial nominations from receiving an up or down vote. Let’s focus instead on the proponents’ suggestions that the “Senate is broken,’’ the “filibuster has been abused,’’ and that “secret holds’’ are undermining democracy.

The concept of a “broken’’ Senate is perhaps the most laughable. Although Congress can be a strange and even silly place at times, consider what Harkin is suggesting: that the Senate, which this year passed landmark legislation in both health care and financial regulation, and recently completed work on a sweeping tax bill, a repeal of“don’t ask don’t tell,’’ and an arms limitation treaty, somehow isn’t “working’’ to his satisfaction.

While we should be reluctant to draw too many conclusions from November’s election, a more compelling argument could be made that voters think Congress has been working — but on the wrong things — and has been too successful when it comes to spending money.

In claiming “filibuster abuse,’’ critics note that the cloture motions utilized to shut off debate have been filed in record numbers during the past two years. This is true, to a point, but driven largely by the majority’s own behavior. First, the Democratic leadership has pursued an unusual number of highly controversial measures, including partisan health care legislation, financial service regulation, and measures eliminating the secret ballot for union members.

Second, Majority Leader Reid has frequently filed cloture motions immediately after bringing a bill to the floor — before anything resembling a filibuster has even materialized. This unusual practice denies the minority the opportunity to offer amendments and sends a very partisan message that the majority is determined to cut off debate as soon as possible.

Finally, the reformers fall back on clichés by throwing around scary phrases like “secret hold.’’ The facts are more mundane: if a senator objects to the passage of a bill or nomination by “unanimous consent’’ — a process avoiding all normal floor consideration and rules — he or she informs the caucus leader, who will object on the senator’s behalf. Sometimes the member announces his or her objection publicly, sometimes not. The outcome is the same either way.

Objecting on someone’s behalf is simply an extension of professional courtesy. The leader could request that the member object in person (which happens occasionally), but a leader who refuses frequently wouldn’t be much of a leader. The power to object to quick voice votes frustrates every senator eventually, but that power also makes senators less partisan than representatives. Since all members carry the power to interfere with one another’s bills, they must find ways to work together in a respectful manner.

The framers carefully designed the Senate to be more deliberative and more difficult to force into quick decisions. The rules and structure protect the rights of the minority, the voice of individual senators, and, by extension, the states they represent. In particular, the formulation of the Senate is meant to protect the interests of small states from the domination of those more populous. These characteristics serve the interests of the entire nation by keeping the union strong.

Thus to see Harkin and other small state senators joining the effort to make the Senate more like the House is an affront to common sense. Perhaps they are trying to curry favor with liberal interest groups such as Common Cause, the Sierra Club, and the SEIU that are pushing for this “reform’’; perhaps they are being pushed by recently elected senators who don’t understand what it means to serve in the minority. Regardless, now is the time for them to step back, respect the rights of the minority, and consider the long-term good of the republic rather than short-term political gain.

John E. Sununu, a guest columnist, is a former US senator from New Hampshire.