The Democrats are trying to change the Senate rules so that they can ram through their agenda when their majority shrinks next week from 59 to 53 seats.
Senate Majority Leader Harry Reid (D-Nev.) has been scheming behind closed doors to use his slim majority to vote on January 5 for the most drastic rules changes since 1975.
“Democrats lost the election. Their power has been weakened significantly. So they are trying to do a Washington-insider tactic to try to grab power, even though the voters told them very clearly in the election that they didn’t like them, and didn’t like their policies,” said a Republican Senate aide.
In a closed-door meeting last week, Reid told the Democrats that he may outright break the rules on the first day of the 112th Congress in order to pass his audacious changes without bipartisan support.
“If Reid endorses the rules change, it would be the first time in history that a Majority Leader has opted to cut off debate on a Senate rules change by a majority vote,” said Marty Gold, a long-time Senate leadership aide and now an attorney at Covington and Burling.
Currently, the Senate needs 67 votes to end debate on a rule, then 51 votes for the rule itself. Since Reid’s rules do not have Republican support, he will need to do a historic end-run around the 67-vote bar (two-thirds of the Senate) to pass them.
Reid’s plan is backed by Sen. Chuck Schumer (D-N.Y), the ambitious operator who is Chairman of the Rules Committee. Schumer held six hearings in 2010 alone on the filibuster and Senate rules changes.
Backed by Schumer and Reid, Sen. Tom Udall (D-N.M.) drafted three major rules changes, which he will bring up for a vote on January 5.
First, the Democrats would make the unprecedented move to change the Senate rules each time a new Congress is elected. Throughout its history, the Senate rules have carried over in a new Congress.
The Senate is a “continuing body” because its members are elected every six years, on a staggered basis. So for each new Congress, two-thirds of the Senators are continuing their terms, thus the rules stayed intact.
“The Senate has always changed its rules by regular order,” said Gold, referring to getting the 67-vote threshold. “So for Udall to do this now would be take that history and turn it on its head. This would be an extraordinary step that makes the Senate like the House of Representatives, with respect to how it treats its own rules.”
In the House, all the Members are up for election every two years, so each new Congress elects new rules at the beginning of the term. Incoming House Speaker John Boehner (R-Ohio) proposed popular new rules for the 112th Congress, which will be voted on after he is sworn in on January 5.
Second, the Senate Democrats are trying to change the filibuster process so that bills can get voted on with only 51 votes, rather than 60 votes (three-fifths of the Senate). A filibuster on a bill involves debate without a time limit. The filibuster is a stalling tactic used by the minority so it can affect debate and votes.
Under the current rule adopted in 1975, the Senate can end a filibuster by getting 60 votes for cloture, which would end the debate. After the 60-vote cloture hurdle, the legislation goes to the floor for a vote. Udall wants to change the process so only 51 votes are needed to vote on legislation, which would take away the power of the minority party to prevent passage of a bill.
“Dems thought 60 was too big a lift when they had 59 votes,” said a GOP aide of votes needed to end cloture. “Now that their ranks are reduced we fully expect them to try and turn the Senate into a version of the House so they can continue to ram through their partisan, unpopular agenda.”
Third, Reid and his team want to remove “holds,” which are the power of one Senator, one state, to stop a vote. The Senate requires “unanimous consent” — all 100 people agreeing — to get anything procedural done.
Getting unanimous consent is generally not problematic, but it is useful for the minority party. Unanimous consent prevents the majority party leadership, a faction, or group from becoming too powerful and thereby able to stop the concerns of one Senator who is in the minority.
“The Senate protects minority opinion,” said a Republican Senate aide of unanimous consent. “And when we’re in the minority, like we have been, that’s a very valuable thing.”
Just last week, Sen. Tom Coburn (R-Okla.) used a hold on the 9/11 Health bill, which provides health care to the first responders at Ground Zero following the terrorists’ attacks of 2001. Coburn and many GOP Senators agreed with the bill’s policies but objected to the funding of it.
Coburn held the bill from a vote until the Democrat leaders negotiated with him to find a fiscally responsible way to pay for the spending. Then, the 9/11 bill passed with unanimous consent, all 100 Senators voting for it.
“The fiscal hawks had leverage to be able to make changes to the 9/11 bill that the Democrats are trying to take away from them now,” said a GOP aide.
Minority Leader Mitch McConnell (R-Ky.) and his leadership team have a plan in place to try to stop the rules changes, according to insiders. But with only 51 votes needed to change the rules, the Senate Democrats have a real chance at succeeding.
“Changing the rules in this extraordinary process has the effect of election nullification,” said Gold. “It allows a smaller majority to write for itself new rules, which permit it to govern the way it wishes, even though the voters said something contrary last November.”
The Senate GOP leadership is counting on outraged Americans voicing their opposition to Reid’s power-grab in the wake of the Midterm Elections.
“Public pressure will be a big part of any effort to stop this. People need to speak out and demand that Democrats don’t act as if the election never happened,” said a GOP aide. “They need to call their Democrat Senators and tell them not to vote to make the Senate some sort of rubber stamp for the Obama administration.”