Pattern of posturing

Due to its unique rules, the Senate usually requires that a bill garner a minimum 60 votes to avoid the legislative graveyard. Recently, however, there is a foreboding new twist. Even measures that enjoy broad bipartisan support — and in many cases more than 60 votes — are stymied. They are victims of a pesky enemy called “message amendments,” items unrelated to the legislation under debate and on which Senate Democrats want to cast symbolic votes.

Demanding votes on amendments to raise the minimum wage, extend unemployment compensation and block the Bush administration’s overtime pay flexibility rules has become a recent pattern of behavior by Senate Democrats — a pattern of posturing.

In the past month, the Senate has shelved a critical tax bill (the FSC/ETI issue, also called the JOBS bill) that would help the United States reverse retaliatory tariffs currently imposed by the European Union. This “euro-tax” against U.S. manufacturers started March 1 and is scheduled for phase-in on a monthly basis up to $4 billion. These sanctions are the result of a finding by the European Union that certain provisions in U.S. tax law amount to an export subsidy. The JOBS bill would correct that problem. Negotiations are ongoing this week to try again to bring up the JOBS bill in exchange for voting on some unrelated amendments, but it’s unclear if these efforts will succeed.

The welfare reform bill faces a similar fate. Republican attempts to rein in these non-germane amendments failed last week when the Senate was not able to garner the 60 votes necessary to invoke cloture. Under the rules, once the Senate invokes cloture, only germane amendments (related to the underlying bill) can be offered.

The Senate also attempted twice, including as recently as this week, to advance different versions of medical malpractice legislation. In both instances most Democrats voted against cloture, denying the Senate the 60 votes necessary to proceed to the measure.

Other important measures, like class action and bankruptcy reform, have broad bipartisan support and are on tap for after the Easter break, but may also get stalled because Democrats want to offer even more unrelated amendments. Further illustrating the pattern of posturing: While class-action reform may finally get a vote later this month, it was already stalled once earlier this year because Democrats wanted an opportunity to offer an unrelated measure on “hate crimes.”

What’s going on here? Critical legislation to spur the economy in areas such as tort reform and international tax and other regulatory changes are all thwarted due to attempts to offer unrelated amendments.

Democrats say two factors explain their behavior. First, they claim the Republican agenda control ignores Democratic priorities. Offering these items as unrelated amendments is their only fallback.

They also complain that once a bill passes the Senate and heads to a conference committee with the House, Democrats are excluded from the process. Stalling a bill by voting against cloture is a way for Democrats to have it both ways: They can block consideration using a procedural ploy, while still telling supporters of the legislation “they would be for it if it ever comes up.”

Republican leaders in the Senate will use next week’s Easter break to regroup and address the Democratic posturing. One school of thought argues that Republicans should let the Democrats vent and offer whatever measures they want to the next legislative vehicle. This is dicey. The Democratic cache of message amendments may be a bottomless pit. “Some say we should just ’pay the ransom and move on,’ ” one GOP leadership aide said. “But once you start down that road, there will always be more.”

Last week, Sen. Rick Santorum publicly offered to allow a vote on increasing the minimum wage in exchange for an agreement by the Democrats to pass the welfare reform bill and go to conference with the House. Sen. Tom Daschle objected.

“Historically, Senate rules sought to ensure major changes in public policy occurred only after a broader consensus than a simple majority was reached,” a former Republican leadership aide told me. “Now that principle is being violated and rules are being used to block passage of bills with wide-ranging consensus.”

Distorting the rules to leverage inaction on items that deserve and have achieved broad support may motivate voters to straighten out the Democrats’ poor posture this November, bending them deeper into minority status.