Memorial Day weekend was typical. The senate adjourned for the holiday, but technically remained in session in order to prevent the President from making a temporary recess appointment for director of a new consumer protection agency. Presidents sometimes take this step to circumvent the senate when it dithers over confirmation of an appointee.
Staying in session, even though they weren’t actually present, allowed members of the Republican minority to block a presidential action by doing nothing. Democrats, on the other hand, could have prevented this farce if their leader as the head of the majority had simply called the Republican bluff and ruled the Senate adjourned. He did not because the Democrats have used the same tactic themselves.
The senate rules that enabled this scenario are so ridiculous and improvised it’s hard to understand how they could be used to organize an important arm of the government. But the recess rule in fact is one of the senate’s more benign parliamentary inventions. Vastly more absurd are rules that allow a single senator on a whim to place a secret hold on legislation. And then there's the so-called filibuster rule where one party can stall or block a bill if its members refuse to yield the floor during a debate. Breaking the impasse requires a three-fifths majority.
The senate has become so accustomed to the idea of this tactic, that the mere threat of a filibuster now invokes the three-fifths rule. As a consequence, nearly all disputed legislation, like the recent health care bill, requires 60 votes out of 100 to pass. A threat of filibuster in one of the senate’s many committees can also delay or kill legislation or sidetrack presidential appointments.
The three-fifths rule, or super majority, has turned the senate into a cemetery where everyone and everything is at eternal rest. How could this happen?
The Constitution grants the senate the power to establish “the rules of its proceedings (Article I, Sec. 5). But it is silent on filibusters, senatorial holds, and super majorities. All of these gimmicks have arisen over the years because senators have chosen to regard them merely as procedural options, rather than the extra-legal power tactics that they are. Now minority Republicans have discovered that “procedure” can be a nuclear weapon. And they have used it scores of times recently to kill opposition initiatives.
The latest example of the filibuster at work came May 19th when Republican senators rejected President Obama’s nomination of Berkeley law professor Goodwin Liu to the Ninth U.S. Circuit Court of Appeals. Liu is widely regarded among lawyers and scholars as a brilliant legal mind. Republicans didn’t actually monopolize the floor of the Senate to prevent a vote on Liu. They merely threatened to do so, which then activated the three-fifths rule. Liu won a large majority but not enough to gain appointment. Liu withdrew his name.
Republicans are launching similar tactics to prevent Harvard Professor Elizabeth Warren from taking the job as director of the Consumer Financial Protection Bureau. Warren, also a brilliant legal scholar, is an expert on finance and consumer protection law.
Liu was rejected because he's too liberal for ultra conservative Republican senators. The Republicans not only consider Warren too liberal, but they’re horrified that under her leadership the consumer agency might actually investigate financial institutions whose risky schemes and malfeasance helped create the current economic crisis.
Can the Senate rules be changed? Almost certainly not. Senators have regular opportunities to make the rules fairer and more democratic. But they don’t do so because both sides can use the rules to advantage when they become the minority. Anyway, procedure is procedure, at least in the U.S. Senate.