Greasing the Wheels in the World’s Most Deliberative Body

Senator Jeff Merkley had called for more radical changes, but was satisfied to eliminate the ability of a senator to demand reading of a bill if it has been publicly available for at least 72 hours.The U.S. Senate this week took steps to curb the use of delaying tactics that critics called unconscionable and supporters said were essential to protect the views of the minority party.

Oregon’s two Democratic senators played prominent roles in the rule changes. Senator Ron Wyden managed to eliminate the practice of secret holds, where a senator could anonymously delay votes on a bill or a judicial appointee. Senators even were able to transfer their “hold” to another anonymous senator.

Senator Jeff Merkley had called for more radical changes, but was satisfied to eliminate the ability of a senator to demand reading of a bill if it has been publicly available for at least 72 hours. They seem like modest changes, but big steps for the most deliberative body in the world.

The filibuster, long praised by its proponents as a necessary check on power and condemned by its critics as a frustrating waste of time, has been delaying votes in the Senate since the mid-19th century. These days even the threat of a filibuster has become tantamount to a filibuster, stunting debate before it even begins. Once used sparingly, the dilatory tactic was used more in 2009 than in the 1950s and 1960s combined.

During the 110th Congress, Senator Tom Coburn (R-OK) used secret holds on so many bills that Democratic leaders were forced to package many of them into a single Omnibus Act, mockingly nicknamed the "Tomnibus.”

In a Senate climate so toxic that longtime Members and staff call it the most gridlocked they’ve ever seen, a group of senators led by Merkley and Wyden sought radical changes to the Senate rules and procedures used to stall legislation.

But given the dramatic political shift in the House after the 2010 election, many Senate Democrats were reluctant to reduce the minority party’s primary procedural tools to delay bills they oppose in the event the 2012 elections go badly for them.

For those tracking the seemingly never-ending health care debate last year, the 72-hour rule change would have provided a much welcomed respite to the clerk of the Senate, who was forced by Republicans to read a 2,000-page substitute amendment to delay a vote on health care reform.

There may be more procedural reform. Legislation is planned to exempt about a third of all nominations from the Senate confirmation process, reducing the number of executive nominations subject to Senate delays. This bill has yet to be drafted and could – ironically – face the threat of a filibuster if it does not secure the 60 votes required to proceed.

A notable omission from Merkley and Wyden’s original proposal is the provision that would have required senators physically to hold the floor during a filibuster by continuously speaking, turning a banal procedural motion into a Capraesque display of rhetoric.

While the final package does not go as far as the reformers such as Merkley and Wyden would prefer, changes to Senate procedural rules are almost always hard fought and significant due to institutional inertia and a reluctance to break with the traditions of the body.

These changes still leave the Senate a long way from the simple majority rule that governs the House, but Merkley and Wyden’s push for reform may pave the way for alterations to Senate rules in the future, albeit at the upper chamber’s usual deliberative pace.