Rules and Rivalries

• Facebook
• Twitter
• Digg

• Print
• E-mail
• Comment

Updated at 8:14 a.m. on January 10.

In the days following Saturday’s tragic attack on Rep. Gabrielle Giffords, D-Ariz., congressional leaders have taken steps to make peace with one another, at least for now.

It would be nice to think that in the wake of the Arizona tragedy, and after their unusually productive lame-duck session, members of Congress might finally be ready to work together.

But the opening days of the 112th Congress boded poorly for a sudden outbreak of comity. On the one hand, leaders in both parties proposed or embraced rules aimed at making Congress less fractious and more productive. On the other, some of these very attempts at procedural change threaten to inflame partisan tensions still further. The harder lawmakers try to patch things up, it seems, the more they fall apart.

Take the Senate debate over whether to rein in filibusters, which now routinely block all floor action. In theory, new rules should appeal to senators on both sides of the aisle. Back in 2005, Republicans complained bitterly about Democratic filibusters of judicial nominations. Just last year, close to a dozen Republicans signed on to a Democrat-authored letter calling for an end to secret “holds,” which allow senators to anonymously stall bills or nominations.

But the way Democrats are handling proposals to squelch both filibusters and holds has Republicans steaming. In a technical dispute worthy only of the world’s most deliberative body, party leaders are sparring over whether the rules may be changed with a simple majority (51 senators), or whether two-thirds (67) must sign on.

We’ll leave it to constitutional scholars to parse whether Majority Leader Harry Reid, D-Nev., may resume the Senate’s first legislative day (which began on January 5) when senators reconvene on January 24, allowing just 51 votes to prevail. Suffice it to say that Republicans are so incensed over what they see as Democrats’ efforts to manipulate the rules that reforms enacted without broad GOP support are likely to backfire.

“Changing the rules is not going to make members work together, it’s going to cause even more partisanship,” said Brian Darling, director of government relations at the Heritage Foundation, which has mounted an education campaign to defend the filibuster.

There are signs of cooperation amid the bickering. Reid and Senate GOP Leader Mitch McConnell of Kentucky will negotiate toward a compromise over the recess. Rules Committee Chairman Chuck Schumer, D-N.Y., has partnered with Sen. Lamar Alexander, R-Tenn., the panel’s ranking Republican, in a working group to look at procedural rules, including ways to streamline judicial and executive branch confirmations.

Changes to the confirmation process and to force “holds” out into the open stand a better chance than watering down the filibuster, which even some Democrats fret could come back to bite them the next time they're in the minority. Still, progressive activists say they will take the filibuster fight to court if they lose on Capitol Hill.

“We actually think the filibuster is unconstitutional, and we think we have the arguments to take this into the federal courts,” said Common Cause President Bob Edgar, a former House Democrat from Pennsylvania.

Of course, lawmakers bent on shutting one another out will find a way to do so, regardless of which rules prevail. Senate rules, for one, have changed little in more than three decades, yet “the behavior has changed fundamentally in the last four years,” noted Norman J. Ornstein, resident scholar at the American Enterprise Institute.

Just look at the rules overhaul that Speaker John Boehner, R-Ohio, has ushered through the House. To their credit, Republicans say they’ll post bills for three calendar days before voting on them, and will make better use of committees and open rules. They will make no changes to the Office of Congressional Ethics, bucking widespread expectations (including this column’s prediction) that they’d shutter or gut the OCE.

But Boehner’s promises of openness ring hollow to Democrats now facing the prospect of a closed rule on the pending vote to repeal President Obama’s health care overhaul. Democrats also object that the health care repeal vote, as well as any tax cuts, won’t be subject to new GOP “cut-as-you-go” budget rules, which require that mandatory spending increases be offset by cuts elsewhere. The Congressional Budget Office estimates that a health care repeal will add more than $230 billion to the deficit over the next decade.

“It is quickly becoming apparent that House GOP leaders are abandoning their campaign pledges to responsibly tackle the deficit and to have the most open and transparent Congress in history,” said Rep. Chris Van Hollen, D-Md., in a memo to the Democratic Caucus obtained by National Journal.

Republicans counter that the CBO score of he health care repeal overestimates the impact on the deficit, and that Democrats will have plenty of chances for input.

“We’re going to move quickly to repeal it; we will then have a conversation on how best to replace it,” said House GOP leadership spokesman Brendan Buck. “And that process will be done in committees, in an open, bipartisan way, and [Democrats] will be able to have their input then.”

In the end, the procedural rules of this Congress may matter less than how they are carried out. As Alexander noted at the Heritage Foundation last week: “The reform the Senate needs is a change in its behavior, not a change in its rules.” The same holds true for leaders on both sides of the aisle, and in both chambers.

E-mail Eliza Newlin Carney at mailto:ecarney@nationaljournal.com.

Follow Carney on twitter at http://twitter.com/elizarules.