With the opening Wednesday of a new session of Congress, the Senate has a rare opportunity under its rules to bring sanity to its time-honored right to unfettered speech. For its first legislative day only, it can, by simple majority vote, require members to put their bodies where their mouths are if they choose to filibuster against a measure they oppose.
Democratic Sen. Tom Udall of New Mexico has said he intends, on the new Senate's first legislative day, to offer a rule whereby senators will no longer be able to stymie action by mere threat of a filibuster but will be required to actually hold the floor with an old-fashioned talkathon.
The obvious objective is to curb the practice of squelching a cloture motion — a vote to end debate requiring a supermajority of 60 votes — by simply mustering in advance enough votes to defeat it, without actually conducting a filibuster. This strategy has been used repeatedly by both parties when in the minority to frustrate bringing up a measure they oppose. In the last Senate, the minority Republicans blocked about 90 majority Democratic proposals either by threatening to defeat cloture or actually doing so.
The Senate Democrats face a narrowed majority in the new Senate but one still large enough to act under the rule permitting members to change rules on the first legislative day only by simple majority. Said to be under consideration at the 11th hour was an old tactic whereby the Democrats could declare a recess rather than adjourning at day's end. They thus could technically extend the legislative day to permit further negotiations with the Republicans on a filibuster compromise.
Mr. Udall would require opponents of any measure to hold the floor by explaining their reasons at length, with increasing numbers of senators supporting or sympathetic to the filibuster to take the floor in defense of their action. The exercise could be politically risky for either side. On the one hand, it could spotlight legitimate reasons for being against the measure at issue; on the other hand, it would graphically illustrate use of an obstructionist tactic when the public demands action.
The New Mexico freshman also seeks to end the Senate practice of "secret holds" — the power of a single senator to block a judicial or other nomination by simply making his objection known to the Senate majority leader. Mr. Udall would require that such senators openly identify themselves and explain the reasons for their opposition.
Prior to the holiday recess, 56 Senate Democrats sent a letter to Sen. Harry Reid, the majority leader, urging him to embrace and act on the Udall proposals. Democrats have proposed talks among Mr. Reid; Senate Minority Leader (and likely future majority leader) Mitch McConnell; Democratic Sen. Charles Schumer of New York, outgoing chairman of the Senate Rules Committee; and Republican Sen. Lamar Alexander of Tennessee, a ranking minority committee member, to compromise on limiting filibuster abuse while retaining the right to oppose a measure through continuous discussion on the floor.
Mr. Udall, in an NPR interview, said his proposals called for "a talking filibuster" if 41 senators voted to hold one, and that he was advocating the rule by "modifying around the edges" and providing "more transparency" in the use of nomination holds. Republicans have complained that over the last two years they were repeatedly thwarted in efforts to offer amendments to Democratic legislation, justifying their use of the filibuster threat.
On the eve of the new Senate session, Mr. Alexander told the conservative Heritage Foundation that the Democrats were taking a risk challenging filibuster use in light of the recent midterm elections. "Voters who turned out in November are going to be pretty disappointed," he said, "when they learn the first thing the Democrats want to do is cut off the right of people they elected to make their voices heard on the floor of the U.S. Senate."
But the Udall proposals would enable voters to hear their senators of both parties at great length. That is, if the Republicans are willing to openly identify themselves by going onto the floor and speaking their piece, rather than simply threatening to hold up the business they came to Washington to conduct.
Jules Witcover is a syndicated columnist and former longtime writer for The Baltimore Sun. His e-mail is juleswitcover@comcast.net.