By:Daniel Horowitz |  January 24th, 2013 at 03:02 PM  |  

Harry Reid and Mitch McConnell have reached a final deal to limit the filibuster, block individual members from offering amendments, and eliminate the ability of back benchers to block conference committees.  The end result will be less power for individual senators and more power for Reid to parachute in unsavory policies into must-pass bills with little recourse to stop them.

You’re going to hear garrulous claims about the need to unfreeze the Senate from its state of gridlock over the next few days.  You’re going to see a lot of reports about Reid caving on his plans to stop the out of control Republican filibusters.  But none of the media reports will provide the proper context for this debate.  Republicans are not the ones who have shut down the Senate, and the Reid/McConnell plan is not a capitulation from Reid.  It rewards him for his bad behavior, and is not something we should support.

The Senate was deliberately structured to slow down bills.  Much to the consternation of the modern day liberal, the Founders actually did not want government to do too many things.  Unlike in the House where the Rules Committee controls the entire floor debate on behalf of the majority party, the Senate vests each individual senator – both from the majority and minority – the right to offer amendments to any bill.  Harry Reid has vitiated that practice by blocking the amendment process on every bill, in order to shield his members from embarrassing votes.

He has also brought up a number of bills that have not even gone through the committee process.  He proceeds to file cloture immediately on a major controversial bill that has not gone through regular order.  In that sense, it’s not that Republicans are automatically filibustering the motion to proceed on every bill that comes up through regular order; it’s that Reid is preemptively filing cloture as a means of bringing up legislation like the House.  To that end, the only recourse for Republicans was to filibuster the motion to proceed with debate, as a means of forcing him to allow amendments to go through.

According to my sources in the Senate, this is how Reid plans to proceed.  He is splitting up his four reforms into two resolutions; one requiring 60 votes to pass and the other 67 votes.

First, he will offer a rules change that would need 60 votes to get over a filibuster of the rules change because it has been drafted up as a “standing order.”  The Senate’s rules can be changed with a simple majority, yet to shut down debate on a rules change itself the Senate would need 67 votes.  With a standing order, you only need 60 votes to shut off a filibuster because it only applies for this Congress or the next two years.  So with 55 Democrats in place Reid only needs 5 Republicans to support his filibuster “reforms.”

The first resolution would provide two options to expedite the motion to proceed.  The first option would allow Senator Reid to file cloture shortly after filing a bill.  It would also eliminate the 30 hours of post cloture debate (often 4-5 full days in the Senate) on the motion to proceed.  The kicker is that Reid will still be able to block all amendments and immediately force a cloture vote without regular order, thereby forcing Republicans to filibuster.  This merely preserves the status quo problems while making it easier for Reid to get through the cloture.  Under the second option, the minority party would only be allowed to offer two amendments and they would be picked by the Republican leadership.  The majority also gets two amendments on every bill.  So the end result is simple: Reid gets his way on the filibuster while still blocking the ability of rank-and file members to offer amendments.

The second resolution, as part of the deal, would take 67 votes to pass because it is a permanent change to the Senate’s rules.  Among other things, this rules change would make it easier for a bill to be committed to a conference.  Remember the conference on ObamaCare and the fear that the conferees would completely rewrite the bill and steam roll it through Congress?  This new procedure may make that scenario easier for the leadership.  Under the rules, it takes three motions to go to conference and conservatives have used that tool to prevent conferees from loading up conference reports with unrelated matters or rewriting a bill.  The new rules change would consolidate the three motions into one and cuts down debate to only two hours.  This provision may be the most offensive, because it will lead to less transparency and the opportunity for a bill to lay in conference for a year or two while pressure builds to change it and ram it through the House and Senate.

If Reid and McConnell seek a return to regular order of passing bills on the floor and going to conference committee with the House, Reid must agree to A) only call up major legislation that has gone through committee and B) allow an open amendment process.  Then we can stop filibustering the motion to proceed.  That would be true filibuster reform.  If Democrats want to reform the Senate, they should tell Harry Reid to look in the mirror.  This is the case of the arsonist acting like the firefighter.

Some will contend that McConnell’s plan is the best option to avoid Reid pulling the nuclear option and getting rid of the filibuster altogether with 51 votes.  But under either plan, a feckless group of Republicans will empower Reid to steamroll individual senators and pass bad legislation.  The bottom line is the Reid is being rewarded for running the Senate completely like the House.

Republicans must vote no on both resolutions.  If Reid pulls the nuclear option, we should also use the nuclear option to create ‘point of orders,’ as we outlined last week.   Most of all, if he pulls the trigger, conservatives must be committed to shutting down the Senate by blocking all unanimous consent agreements. We have no other choice but to fight.