Rather than dealing a killing blow to Republican obstructionism, Harry Reid’s move Thursday to abolish the filibuster for certain nominees may have been the first shot in a new war in the Senate.
Minority Leader Mitch McConnell warned Democrats Thursday that they might regret their vote, “a lot sooner than you think.”
McConnell’s words were generally considered to be a warning that when Republicans run the Senate in the future, they will use the same sort of hardball tactics to suppress Democrats in the minority. But in multiple discussions Friday with people closely tied to Senate Republicans it became clear that that Republicans have already begun discussing ways to retaliate against the Majority Leader.
The question, these sources said, is not whether the Republicans will retaliate, but what form the retaliation will take. The Senate minority still has multiple means at its disposal to cause havoc in the Senate, but how to do it – and how publicly – is a subject of active debate.
A source with close ties to senior Republican leadership said that the party is currently broken into two camps. The “total war” faction is in favor of using all the methods at their disposal to bring business in the chamber to a halt. But this runs the dual risk of allowing Democrats to claim doing away with the filibuster was justified because of Republicans’ relentless obstructionism, and of taking the focus of the troubled rollout of the Heathcare.gov website.
Another camp favors a more measured response, such as using procedural moves that will be largely invisible to the public, but will cause great personal inconvenience for senators and their staff.
In any case, stripping the minority of a cherished right, said one former senior Senate aide, won’t be something the GOP takes lightly.
“This is a significant move and it will have far-reaching implications. Like anything when you make changes up there the implications are not necessarily predictable,” said Darryl D. Nirenberg, a partner with law firm Patton Boggs who served as chief of staff to the late Republican Senator Jesse Helms.
Nirenberg said he was not personally aware of any plans to obstruct business, but he added, “Senators can be very creative in exercising their rights as senators.”
Aaron-Andrew P. Bruhl, an Associate Professor, University of Houston Law Center who has studied and written about Senate procedure agreed, saying, “Even within the category of things the ruling does apply to, there are still some things the Republican could do to try to block the majority.”
“The leader will feel this,” predicted Elizabeth Letchworth, a principal with Congressional Global Strategy in Washington who formerly served as U.S. Senate Secretary for the Majority under Republican leadership.
“They could force roll call votes every time he leaves the floor,” she said. “They could make the senate day miserable. Unpredictable.”
The reason is that the Senate relies on a concept called “unanimous consent” to conduct most of its business. Senators routinely request unanimous consent to waive many of the chamber’s arcane rules – such as the requirement that a bill be read aloud twice in the chamber – to make business move more quickly.
On Wednesday, November 20, for example, unanimous consent was requested 49 times on the floor of the Senate. At any one of those points, a single senator could have objected, bringing proceedings to a halt.
Here are just four of the many ways the minority could stymie Reid, even in the absence of a filibuster on presidential nominations.
Blocking committee meetings. All presidential nominees have to be cleared by the relevant Senate committee before they are brought to the floor. One of the Senate’s lesser-known rules holds that no committee meetings may be continued, or begin, more than two hours after the Senate convenes for business. The rule is routinely waived, allowing committees to conduct business during the day. But if Republicans withheld consent, the schedule for committee meetings could be thrown into utter confusion.
Requiring that all bills be read aloud. Twice. Senate procedure requires that all bills be read aloud two times on the Senate floor. Senators routinely grant unanimous consent to consider bills “as read” thus doing away with the requirement. But a single senator’s objection to the consent request would mean that no action could be taken until the bill was read in full two times. Considering that bills commonly run to hundreds of pages, this could delay proceedings enormously.
Demanding repeated roll calls and motions to adjourn. Any senator has the right to demand certain types of votes be taken at virtually any time, which means that a determined member of the minority could, while not completely stopping business, slow it to a crawl by making repeated requests for votes that serve no real purpose.
Filibustering non-controversial bills. The vote on Thursday did nothing to prevent the minority from filibustering regular legislation. So if Republicans were particularly opposed to a presidential nominee, they could filibuster legislation important to the administration, and offer to relent only if the nominee is withdrawn.
The byzantine procedures of the Senate mean that beyond these, there are many other potential avenues for Republicans to pursue if they are determined to get back at Reid. As Bruhl put it, while the Republicans may not be able to block nominees anymore, “They can still do a lot of collateral damage.” - Follow Rob Garver on Twitter @rrgarver
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