Senators bent on ending the logjams and secrecy that tie up the world's greatest deliberative body lost a key parliamentary fight last week, but the emotional debate over filibusters and so-called secret holds is just warming up.
Sixteen months into a contentious session marked by Senate deadlocks, rules disputes, disrupted hearings, stalled executive branch nominations and scuttled legislation, a growing chorus of lawmakers, experts and activists are shouting: enough.
The secret hold and the filibuster may have outlived their usefulness.
On Capitol Hill, junior senators led by New Mexico Democrat Tom Udall have met twice with Majority Leader Harry Reid, D-Nev., to vent their frustrations. Reid recently suggested that senators who won't follow the rules on anonymous holds should be referred to the Senate ethics panel. Reform-minded senators have introduced several measures aimed at freeing the Senate up to act with a simple majority, as opposed to the two-thirds supermajority that has become the status quo.
The Senate Rules and Administration Committee will hold the second in a series of hearings examining the filibuster this week. Today, a Brookings Institution conference on the filibuster, which now blocks votes far more often than in previous decades, will ask leading experts a question that seems to pop up a lot these days: Is the Senate functional?
Republicans tend to argue that the rules are just fine, while Democrats by and large are the ones pushing for parliamentary fixes. But senators on both sides of the aisle accuse one another of procedural shenanigans. Democrats charge Republicans with obstructing action to score political points. Republicans say Democrats are abusing their majority and stifling debate. And some Senate Republicans are unhappy with holds, too.
Sen. Charles Grassley, R-Iowa, has toiled for years with Sen. Ron Wyden, D-Ore., to end secret holds, which enable a single senator to anonymously block action on a bill or nominee. In theory, the Senate changed those rules in 2007 to require a senator imposing a hold secretly to go public within six session days. But in practice, that rule is not enforced, and senators routinely hand off secret holds as the six-day deadline approaches, prompting charges of "hold laundering."
Last week, Wyden and Grassley set out to attach a measure to tighten disclosure rules for holds as an amendment to the Senate's pending Wall Street reform bill. But Sen. Jim DeMint, R-S.C., foiled that effort with a second-degree amendment widely regarded as a poison pill -- a measure that would have set a one-year deadline for completing fencing along the U.S.-Mexico border.
In a signal of the growing procedural rancor on Capitol Hill, Wyden and his allies publicly sparred with DeMint over whether and how the Wall Street bill could be amended. Sen. Claire McCaskill, D-Mo., also took to the Senate floor last week to decry holds and point to the dozens of executive branch nominees who are waiting for release from the "land of secret holds." McCaskill has rounded up 58 colleagues, including a couple of Republicans, to sign a letter asking Senate leaders to ban secret holds and pledging to voluntarily swear off them.
The process of changing rules, of course, will hit a familiar wall: Senate leaders can't overcome a filibuster and clear the way for a vote -- known as invoking cloture -- without 60 votes, a rule that dates in one form or another to 1917. Some scholars argue that this supermajority rule is what must change if the Senate is to function efficiently again.
"There is no good justification for ruling by supermajorities," said Sarah Binder, a senior fellow at the Brookings Institution who teaches political science at George Washington University. "An established principle of legislatures is working by majority rule, and allowing the majority will to move the legislature."
But Senate Republicans -- even those who deplore secret holds -- unapologetically defend the filibuster as crucial to protecting minority rights. And when they're in the minority, Democrats tend to look on the filibuster more kindly, too. Both the secret hold and the filibuster may have outlived their usefulness. But secret holds are particularly pernicious, and in the short term give reform advocates a more realistic target.
"It's hard for senators to justify the anonymous character of holds, let alone a single senator holding the entire Senate hostage," said Binder. "That doesn't seem particularly defensible to me."
Some wonder whether Senate gridlock is even that much of a problem, given that Congress enacted sweeping health care reform legislation this year and may soon follow suit with Wall Street legislation. If Republicans manage to win control of the Senate in November, the issue will fade. But if Democrats retain control with a smaller margin, as many expect, the fight over holds and filibusters will only intensify. As Binder put it: "We'll see a lot more obstruction, and a lot more calls for reforming the rules."