On Jan. 5, the day this edition publishes, New Mexico’s freshman Democrat in the US Senate, Tom Udall, will attempt to invoke the “constitutional option”—an arcane point of constitutional law that allows each house of Congress to make up its own rules (with only 51 votes) on the first day of each session. Udall’s goal? To end the use of the filibuster to block legislation.
The idea came from being in the House and watching the Senate function. Many, many times, at the end of a session, we’d send hundreds of good bills over to the Senate—only to see them die. It was clear to me that this was a broken institution. There were always a lot of excuses, but the bottom line was they weren’t performing for the American people.
[In 2008] my father [the late Stewart Udall] told me to reread [former New Mexico Democratic] Sen. Clinton Anderson’s autobiography, Outsider in the Senate. Clint championed what he called the ‘constitutional option.’ He was, at the time, fighting against the filibuster on civil rights bills. He was very frustrated and decided that he would take to the floor the motion to adopt rules at the beginning of the Senate.
So when I got into the Senate, I thought maybe I should do this on the first day I come in. I talked with people about it, and they said, ‘We have 60 votes; we’re in very good shape.’ So I thought, ‘Well, I’ll observe and see how things go.’ What I observed was unprecedented filibusters, unprecedented delay, unprecedented obstruction. It just seemed like it was getting worse.
You can go through the list: The Senate isn’t doing appropriations bills; it isn’t doing authorization bills. In wartime, we’ve always done an authorization on the Department of Defense; we didn’t even do that this year. We didn’t do a budget bill this year, even though it’s required under the law. We are way behind on judicial nominations—over 100 of them are vacant; 44 are considered emergencies—and, at the end of President Obama’s first year in office, he only had 55 percent of his executive nominations approved. That’s just inexcusable. When I say the Senate’s broken, that’s what I’m referring to.
View it as a two-step process: First, the constitutional option is our one chance, on the first legislative day, to take action. The second step is the tough consensus building of what 51 senators want to do with the rules. That’s what we’ve been trying to do for the last couple of months.
One [proposal] is to require people that want to debate and want to continue debate—who basically want to filibuster—to stand up and do it. Right now they’re using the rules to hide in the shadows and not filibuster.
Having this 24-hour news cycle, having what I would call toxic talk on the air, creates an atmosphere where partisanship is more accepted. If you talk to the old-timers that were here 25-plus years ago, when the Senate was not covered by CSPAN, it was a much different place. It was much more collegial: Senators weren’t giving speeches to the cameras; they were trying to persuade each other.
What’s changed over time is there’s been less of a willingness of senators to work with each other. Always, there was this respect for the minority to speak, but then there was this agreement to move to an up or down vote. What the minority now tries to do is prevent us from doing anything.
The Republicans—the Republican leadership here—won’t negotiate at all.
Do I think it’s a problem of leadership? It’s an example of 41 senators all agreeing that they’re going to obstruct in many circumstances. I think it’s a behavior problem.