After a nearly three-week absence, the Senate is back in session Tuesday in a chamber where time has ground to a halt: It's the same legislative day there that began Jan. 5.
The ruling Democrats have effectively stopped the clock for a reason: They contend that on the Senate's first day in session, its rules can be changed with just 51 votes, rather than the 67 normally needed. And the rules they are trying to change all have to do with the minority's ultimate weapon: the filibuster.
Confused about filibusters? The Congressional Research Service put together a report that explains. Here's an excerpt:
"Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators' rights and opportunities in the legislative process. ...
"Almost every bill, indeed, is potentially subject to two filibusters before the Senate votes on whether to pass it: first, a filibuster on a motion to proceed to the bill's consideration; and second, after the Senate agrees to this motion, a filibuster on the bill itself.
"Senate Rule XXII, however, known as the 'cloture rule,' enables Senators to end a filibuster on any debatable matter the Senate is considering. ... For most matters, it requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture." And "invoking cloture" allows only 30 more hours for consideration.
Taking Up Time
The report's authors also took a look at how much time filibusters can take up in the Senate. Their conclusion? "In principle, a truly determined minority of Senators, even one too small to prevent cloture, usually can delay for as much as two weeks the time at which the Senate finally votes to pass a bill that most Senators support." And toward the end of a session especially, that can make a big difference.
Source: Congressional Research Service
The man leading the charge is Tom Udall, a New Mexico Democrat. He has been fuming since taking office two years ago about the record number of times Republicans have blocked bills and nominations by threatening to talk them to death — using that notorious right of the Senate minority known as the filibuster.
"The American people are fed up with it. They are fed up with us, and I don't blame them," he said on the Senate floor the first day that chamber met this year. "We need to bring the workings of the Senate out of the shadows and restore its accountability. That begins with addressing our own dysfunction — specifically, the source of that dysfunction, the Senate rules."
Majority Leader Harry Reid backed Udall up: "We may not agree yet on how to fix the problem, but no one can credibly claim problems don't exist. No one who has watched this body operate since the current minority took office can say that it functions just fine."
But Minority Leader Mitch McConnell says Republicans don't think the Senate rules are broken.
The GOP gained six Senate seats in November; it makes it that much harder for Democrats now to muster the 60 votes they need to stop a filibuster.
"And what we think is going on here is ... an effort to, in effect, to try to nullify the results of the election," McConnell says.
Not so, says Udall. "My proposal is to make the Senate of each Congress accountable for all of our rules. This is what the Constitution provides for, and it's what our founders intended."
The Constitution does, in fact, say that each chamber of Congress shall make its own rules. But it does not say the Senate needs a two-thirds majority to do it — the way it does to confirm a treaty or override a presidential veto.
That's why Vice Presidents Nixon, Humphrey and Rockefeller all ruled as presidents of the Senate that only a simple majority is needed to change the rules on the first day of the Senate. And that's why Reid earlier this month froze the Senate in Day One and seemed to threaten that he would hold such a simple majority vote should a deal not be reached with Republicans.
"We hope that the Republicans see the light of day and are willing to work with us. If not, we'll have to do something on our own," Reid said.
More Proposed Changes
Senate Republicans do seem willing to agree to at least one of the rules changes Udall and other frustrated junior Senate Democrats are proposing: doing away with secret holds, those threats made anonymously to filibuster bills or nominations. Iowa Republican Chuck Grassley says holds should still be permitted — so long as they're not secret.
"If a senator then has a legitimate reason to object to proceedings to a bill, or a nominee, then he or she ought to have the guts to do so publicly," Grassley says.
Republicans also appear likely to agree to eliminate the need for Senate confirmation of some lower-level executive branch nominees whose confirmations got stalled by filibusters. But they are solidly opposed to another proposed rules change: a move to reduce the number of hours that a motion to bring up a bill must be debated — from 30 hours to two.
Oregon Democrat Jeff Merkley is pushing yet another rules change: that a filibuster come to an end the moment its proponents stop talking on the Senate floor.
"We're saying, yes, you can keep speaking, but you got to speak," he explains. "You can't go on vacation. You cannot hide from the American people. You cannot object and hide."
But Tennessee Republican Lamar Alexander says the onus properly belongs on those promoting a bill or nomination.
"If you think we're holding something up improperly, confront that senator. Run over him. You can do it — you've got the power to do it if you have 60 votes," he says.
Republicans seem confident that Democrats won't resort to passing a set of rules changes by a simple majority. Senate expert Ross Baker of Rutgers University says Democrats likely would have a hard time mustering even those 51 votes.
"Because there is the possibility that the Democrats may become the minority party after the 2012 election," he says, "and I suspect there are some Democratic senators, being strategic thinkers, [who] are kind of projecting ahead to 2012 and saying, 'Well, now, wait a minute — we might want to have the filibuster intact the way it is now if we find ourselves in the minority.' "
And many Democrats also admit that for all the frustrations of the filibuster, the last session of Congress was one of the most productive in memory.