Breaking the Rules

When it comes to making Congress work again, does US Sen. Tom Udall have the answer?

Tom Udall gets about halfway to SFR's conference room before an advertising rep stops him to ask what's wrong with Congress.

"It's a mess up there," Udall admits, shaking his head. Then he tells her a story about his wife's similar frustrations: "She said, 'I wouldn't vote for any of you guys again, either!'"

They both laugh.

It's a cold morning in January, and Udall wears a scarf thrown over one shoulder of his gray suit. A slight man of 64, he wears his sandy, graying hair combed to one side and speaks matter-of-factly, fixing a steady gaze on whomever he's talking to. When I offer him something to drink, he asks for hot water.

He fleshes out the anecdote about his wife: She was watching TV when MSNBC's Chuck Todd broadcasted a litany of pork provisions in the recent fiscal cliff compromise, including more than $67 billion in tax breaks for special interests such as rum producers, racetrack owners and Hollywood producers.

"I didn't see it…but it sounded like really bad stuff, you know, that's hidden in the bill," Udall says. "If I had known about the whole package that she listed off, I would've had real doubts about the bill itself. But the way we're legislating right now, we didn't get to see any of that."

By now, the story is familiar: As the country teetered on the edge of a fiscal cliff—a monstrous package of tax increases and budget cuts set to take effect at the beginning of this year—Congress and the White House were locked in a stalemate. Finally, on New Year's Eve, Vice President Joe Biden brokered a deal with Senate Minority Leader Mitch McConnell, R-Ky.

"I have a staff member read through the bills—you know, to really check out what's in there, because it can be pretty embarrassing," Udall says. "And in this case, we just passed it an hour after [Biden] briefed us. Nobody had read it. And this is the problem with the way we legislate."

To Udall, that problem is so profound that it's worth fundamentally overhauling the Senate. It's one of his chief concerns, and he's been working on it for almost as long as he's been in office. Currently, Udall is leading the charge to reform the Senate's byzantine rules of procedure, along with Sen. Jeff Merkley, D-Ore., and Sen. Tom Harkin, D-Iowa. Udall is only a freshman Democratic senator—a mere tadpole in the Senate's seniority-based food chain—but his tireless quest to reform Washington has catapulted him to primetime TV interviews, frequent op-ed pieces in national publications and the New York Times editorial pages.

But Udall's proposals are controversial. His opponents consider aspects of the proposed rule changes ill-advised at best—and "highly pernicious," in the words of one Washington veteran, at worst. What's more, the means by which he plans to achieve those changes—a procedural sleight-of-hand known as the "constitutional option"—is unprecedented and could significantly impact how the Senate functions.

So here he is, sipping lukewarm water out of a "Best of Santa Fe" coffee mug and patiently explaining how exactly the Senate rules work, and why they're not working—and it occurs to me that one unassuming New Mexican just might have what it takes to make Congress work again.

Before becoming a senator, Udall served as New Mexico's attorney general and, later, as a congressman representing the state's Dist. 3, which includes Santa Fe. Almost since his election to the Senate in 2008, he's been pushing for reform.

He usually starts his pitch with a simple assumption: The Senate is broken.

"I observed it for 10 years when I was in the House; it seemed to me that it was a graveyard for good ideas," he says. "We would be passing bills out of the House; they would go into the Senate, and they would just die."

During its two years, the 112th Congress—in session from 2011 until this January—passed 220 public laws, the fewest in history.

"The rules have been so abused, and so much power has been taken onto individual senators, that the institution can't operate right now," Udall says. In his view, much of the blame lies with the filibuster.

Technically, the term "filibuster" includes any tactic used to delay legislative action. In the context of the Senate, it usually means extending debate on a bill or nomination—or even on the question of whether to debate a bill or nomination—indefinitely in order to keep it from moving forward.

The most famous example, and one frequently invoked to reflect how much has changed over the course of Senate history, is Jimmy Stewart's filibuster in the 1939 film Mr. Smith Goes to Washington. In the film, Stewart plays the naïve Mr. Smith, who talks for hours on the Senate floor in an attempt to block a corrupt land deal.

In the past, Udall explains, senators who wanted to filibuster a bill came down to the floor and talked, sometimes for hours—just like Jimmy Stewart. Today, however, the filibuster has morphed into a mere threat.

"Now, it's secret and silent…somebody calls the cloakroom and says, 'I don't like this bill,' and they don't even have to be public about it," Udall explains. "And so, if you get every senator doing that, the whole place grinds to a halt—and that's what happened the last two years. I mean, we had the most unproductive Congress on the Senate side in history, and then the same's true with the overall Congress."

In part, that's because it takes 60 votes—a "supermajority"—to stop a filibuster. In recent years, that has usually meant that any vote to end a filibuster has to be bipartisan. (The current Senate has 53 Democrats, 45 Republicans and two Independents.)

In one sense, the filibuster protects the minority party's rights by giving it a last-resort means of stopping a particularly offensive bill. But in recent years, filibusters have become less an extraordinary measure and more a matter of course.

While the actual number of filibusters undertaken is difficult to calculate, the number of votes taken in an attempt to break a filibuster—known as "cloture" votes—reflects the exponential rise in filibusters (see chart, page 18). In the most recent congress, for instance, the Senate held 73 cloture votes—down from 112 in 2007-08, but still the third-highest in history.

Udall's proposal to reform the Senate rules has four parts, but its centerpiece is the "talking filibuster"—a requirement that anyone who wants to stop a bill has to show up and actually, physically do it.

"One senator shouldn't be able to hold up the whole show," he says. "If you're going to hold up the whole show, then go to the floor, tell everybody why you're going to hold up the United States Senate from acting on a particular bill."

It sounds fair. But critics like Martin B Gold, a 40-year veteran of Washington and senior counsel at the international law firm Covington & Burling, have their doubts.

"I do not believe that a number of Sen. Udall's proposals are bad things in and of themselves; some of those things are only bad in the context of solving half the problem but not the other half," Gold says. "Some of the things that he proposes, which will damage minority rights beyond recognition, are bad and should be opposed regardless."

Gold points to the Republican argument that the filibuster—even if it is being overused—is only part of the problem.

"From a Republican perspective, their problem is that [Senate Majority Leader Harry] Reid [D-Nev.] has used his power as majority leader in extraordinary and unprecedented ways to block amendments," he says.

Namely: "filling the tree," a once-rare parliamentary procedure that Republicans say Reid has used excessively—and unfairly.

Here's how it works: When it comes to amendments, the Senate majority leader has the power of "priority recognition"—the ability to choose which amendments to allow on a bill.

Imagine a bill as the trunk of the tree. The tree can only support a certain number of branches before it collapses under its own weight; in the same way, only a certain number of amendments are allowed on any given bill. So in essence, the majority leader can choose to allow only the amendments he likes, or only the ones proposed by members of his party. In doing so, he can take up all the available amendment space—hence "filling the tree."

According to data from the Heritage Foundation, a conservative think tank, Reid filled the tree 58 times between 2007 and April 2012—more than all of the previous six majority leaders (three Democrats, three Republicans) combined.

"That is a matter of bitter complaint on the Republican side—and it's extraordinary, really," Gold says.

Last February, for example, Reid filled the tree on a transportation bill, blocking Republicans from adding amendments. Some of the amendments Republicans wanted had nothing to do with transportation, such as a bid by Sen. Rand Paul, R-Ky., to block US aid to Egypt until 19 hostages were released, or a proposal by Sen. Roy Blunt, R-Mo., to change the Obama administration's contraception rule, according to Politico.

Udall says he supports the minority party's right to add relevant amendments to a bill. But Gold maintains that even unrelated amendments have a place in the process, since they allow the minority party to raise issues the majority party may not want to talk about.

"When the amendment opportunities are foreclosed, whose rights are limited? It's not just the rights of the senator who is being limited, but the people who the senator represents," Gold notes.

That's why Gold argues that Udall's proposal only does half of what's needed to truly reform the Senate.
"The real way the Senate should work, you understand, is that you don't change a single comma in the rules; you simply exercise self-restraint: Republicans don't filibuster the motion to proceed so much, and Democrats don't fill the amendment tree so much," Gold says. "Self-restraint is the best answer, honestly."

But as any congressional observer knows, self-restraint is more of a theoretical value than a realistic proposition. Udall points to a "gentlemen's agreement" between Reid and McConnell that arose the last time he proposed the constitutional option, back in January 2011.

"What happened last time is, both leaders stepped forward and said they had a gentleman's agreement to improve everything—and then it blew up," Udall recalls. "They deflected people from our package by saying, 'We have a gentlemen's agreement; we promise you it's going to work better in the future.' And then…the agreement blew up within a matter of weeks."

While the previous proposal did address the amendment issue, Udall says, "This package doesn't have amendments because we wanted to encourage [Republicans] to come forward with their ideas on amendments, and then we will deal with them as we get into the final drafting of this." But to Gold, that's short-sighted—especially given that no party is likely to stay in the majority forever.

"At the end of the day, it's simply fine for Sen. Udall—who's never served a day in the minority in the Senate—to figure out how it is that the Senate can be made more efficient from a majority party perspective," Gold says, "but he's not fixing the problem that so aggravates the minority; he's only fixing the problem that aggravates his own people."

But Gold also says the "talking filibuster" proposal—where Udall acknowledges that support is "softest"—has one "highly pernicious" feature: "If there is a gap in the talking filibuster, the filibuster can be ended on a simple majority vote," he says. "Never in the history of the Senate has this been so."

A simple majority, of course, would enable Democrats to stop a filibuster on their own, with just 51 votes—something Gold considers a serious threat to the minority party's power. But Udall spokeswoman Marissa Padilla writes in an email to SFR that ending the talking filibuster with a simple majority can only happen "if at one point no senator wishes to speak."

"The talking filibuster does not mean that the minority will lose its power to filibuster," Padilla writes. "It means that the filibuster will be restored to its traditional role, where it is only used on issues that senators are willing to spend time and energy to oppose. This will help curb the routine use of the filibuster to block things for no other reason than to obstruct all business."

But on a fundamental level, nearly everyone agrees: The Senate is broken, and it's hard to know quite who's to blame.

"I think a better way of looking at this anyway is that we have two negative trends that have tended to develop at the same time, and that one is not wholly related to the other: Republicans being quick on filibustering the motion to proceed, which probably ought to be fixed somehow, and Democrats being quick to fill the amendment tree, which surely ought to be fixed somehow," Gold says, "and that any fix that tries to cure only one-half of the problem without the other half is fundamentally unbalanced and unfair."

But it isn't just the rules change that some Republicans consider unfair—it's also the means by which Udall proposes to achieve it. Specifically, they worry about the constitutional (or "nuclear") option, which could give Democrats the power to reform the Senate with just 51 votes.

According to a provision of the US Constitution, on the first day of the legislative session, the Senate can alter its own rules with a simple majority of 51 votes. Normally, rules changes require approval by two-thirds of the senators present and voting: a whopping 67 votes. Neither party has held 67 Senate seats since the 1960s, so recent rules changes have always needed the support of both parties. (When asked whether he has the 51 votes, Udall demurred, saying he planned to spend the recess gathering support.)

Invoking the constitutional option, then, would give Democrats a huge advantage—and could allow them to remake the rules to their benefit.

Recently, Reid extended the first legislative day to Jan. 22—meaning that next week, Democrats will have a chance to invoke the constitutional option.

There are, of course, arguments against it. Some critics maintain that the constitutional option is, in fact, unconstitutional—that in order to change its rules, the Senate must abide by its existing rules, and therefore must have at least 67 votes to approve the change.

Gold, it so happens, co-authored the seminal paper on invoking the constitutional option in the Harvard Journal of Law and Public Policy in 2004.

"I never advocated, however—any place in that article—that such be done," he says. "It's like writing about nuclear weapons…and indicating that there is a mechanism by which nuclear bombs can be built, without advocating they be used."

The point of the 67-vote threshold for rules changes, Gold explains, is  as "a way of protecting Senate minorities, whether they are Republican or Democrat, from just having the majority party of the moment impose its will on the rules and structure of the body."

Gold says the combination of the constitutional option with rules changes that address only one side's concerns could effect two major changes in the Senate.

"The first is that, in an unprecedented way, the majority party will have oppressed the minority party on rules changes—the mechanism will be oppressive," he says, referring to the constitutional option. "The second thing that will happen is that the minority party will have fewer rights in the Senate than the minority party has ever had in the history of the Senate. Those two things will be true. That may suit Sen. Udall, but I think it's really bad for the Senate."

Where, then, should the Senate go from here?

Udall points to the fiscal cliff negotiations as evidence not only of Congress' dysfunction, but also of the Senate's ability to act in a pinch.

"Democracy is messy, and there's way too much of the blame game," he says. "But the good thing about the whole issue with the fiscal cliff is, we did reach a result, and we passed a piece of legislation, and it actually moved us in the right direction in terms of this overall goal of dealing with the yearly deficits and bringing down the growing national debt."

But he also points out that the fix is only temporary, and even tougher battles lie ahead.

"We essentially have created three more cliffs out of the fiscal cliff," Udall says. First, at the end of February, comes another vote on whether to raise the debt ceiling in order to pay for spending Congress has already approved—the same battle that, in August 2011, led the country to the edge of default, prompting a credit downgrade from Standard & Poor's. Next comes the "sequester"—the sweeping budget cuts scheduled to take effect at the beginning of this year, but which were postponed until March 1 during the fiscal cliff negotiations. Finally, there's the expiration of the "continuing resolution"—an informal type of appropriation used in the absence of a formal budget bill—on March 27.

In other words, Congress is poised to face its greatest challenge yet: dealing with the explosion of spending, coupled with reduced revenues, that is driving the country's debt up to unsustainable levels.

"To reach an overall agreement to deal with our debt, you have to find $4 trillion over 10 years, and that is really difficult," Udall says. "We're not willing to tell people how dramatic of change we have to go through," he says.

Some measures have been put in place—including the latest fiscal cliff deal—"but we still haven't even come halfway," he says.

Not to mention, he adds, "You don't want to do all of this too fast, because you drive the economy back into a recession…I think one of the worst things that could happen to New Mexico in the next couple of years would be severe federal cuts in all of the things that are very much a federal presence in New Mexico…from the national labs to our three Air Force bases to White Sands testing to all the national parks and monuments."

But in order to adequately address these issues, both Udall and Gold agree on one thing: the Senate will have to function better.

"At the end of the day, of course, the rules are not the problem; it's the execution of the rules that is the problem," Gold says. "The rules haven't changed…So what changed? Human behavior. How the rules are executed, not the rules themselves. Because the rules do not command this behavior; they permit it, not command it." Gold tells a story—one of those from the annals of the Senate's glory days—about the Gang of 14, a bipartisan group that worked out a deal to avoid excessive filibustering of George W Bush's judicial nominations.

"It was all a function of self-restraint," Gold says. "Nobody changed a rule, but they put the sword of the filibuster back in the sheath. And they allowed it to be used in extraordinary circumstances, but not as an instrument of party policy. And nobody voted for the nuclear option."

A similar change could happen this time: Even as Udall works to garner support for the constitutional option and his reform package, a bipartisan coalition of senators is working on another proposal that wouldn't require invoking the constitutional option.

Even though he believes Washington is more polarized than it used to be, Gold says compromise is not only possible, but imperative.

"At the end of the day, the Senate went back to normal—and that's how it should be," he says. "Self-restraint is still possible in an era of hyper-partisanship, like rules changes are still possible in an era of hyper-partisanship. But what is necessary is for the parties to understand that if they take their positions to the extreme, where one party just simply oppresses the other one, it is not going to cure partisanship; it is going to advance it. It is going to deepen it."

And Udall, for one, promises to do his part.

"Every day, I wake up and try to not be part of the problem," he says. "I try to set a positive example; I try to go out and legislate about the things people care about; and I try to respond to my constituents."

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