How things should be done


As we all know at this time, the junior senator from Minnesota refused to agree to granting Sen. Joe Lieberman, JoeForJoe-Conn., an additional minute or two beyond the ten he’d been recognized:

Now, it’s a minor moment, one that those who aren’t familiar with the arcana of parliamentary procedure would see as…well, kind of weak. But this is exactly the sort of thing that we need more of from the Democrats.

Look, first off, Lieberman wasn’t being cut off maliciously – Franken cut him off because, frankly, Democrats are trying to get the health care bill done, and they’re drawing a firm line that when you have ten minutes to speak, you have ten minutes to speak. This does end one of the old rules about the comity of the Senate – that members could speak a bit more if they needed to – but it does so in response to a breakdown in comity regarding cloture, which used to be used only once in a great while, but now is used routinely.

One of the frustrations that I share with my progressive friends is that Senate Majority Leader Harry Reid, D-Nev., has been running the Senate as if it’s still 1990, and the general rules of comity hadn’t broken down. They have. And, to be blunt, it’s not the Republicans’ fault that the breakdown in the “gentleman’s agreement” over cloture has happened. Yes, I think they’re being irresponsible, but from their perspective, they’re doing what they have to do to stop a bill they oppose, and they’re using the tricks allowed by parliamentary procedure to slow things down, and hopefully stop them.

When your opponents begin using parliamentary procedure against you, you can do three things. First, you can give up on what you’re trying to do, at least for now – not smart, but on a minor issue, maybe the best course of action. You can pretend it isn’t happening – which has been Reid’s stance thus far. Or you can start pulling out your own arcane, weird rules that allow you to make trouble for the minority.

It’s that last one that Reid needs to do. At this point, starting over with reconcilliation is probably not going to work (though fixing the bill that gets through via reconcilliation can and should be on the table). But back in June or July, that was very much a possibility and very much something that Reid could have pushed through. And he should have pushed things through via a muscular definition of reconcilliation that went above and beyond the spirit, and if necessary, the letter of the rules. As the Republicans noted during the debate over the nuclear option, a ruling from the chair on a point of order requires only a simple majority to uphold, and all that needs to happen to let a bill through that is non-conforming to Senate rules is for the chair to rule it doesn’t violate the rules, and a majority of Senators to agree with him or her.

Reid threatening to make reconcilliation essentially allow for everything might be enough to crack the Republicans on cloture – because the loss of the filibuster would be a disaster for the minority. And once reconcilliation’s established meaning was “whatever the majority says it is,” that would doom the filibuster once and for all. It’s easy to imagine Republicans agreeing to be more agreeable on cloture motions in exchange for the ability to use it when it really, really mattered.

My criticism of Reid is not that he’s unable to make Joe Lieberman less of a douche, or Ben Nelson less of a Republican. Those are problems that would have bedeviled Lyndon Baines Johnson at the height of his powers. No, my problem is that Reid doesn’t seem to understand that parliamentary procedure can be wielded as a weapon by the majority as well as the minority. He seems to be perfectly content with the rules of the Senate as they are, and completely unwilling to look to the places where they can be bent. And that’s a shame. Because one of the key jobs of the Majority Leader is to find ways in the rules to get the majority’s will enacted. And it’s a place where Reid has simply proven to be incompetent.