- The Washington Times - Wednesday, February 25, 2004

David Kay traveled to Capitol Hill a few weeks ago and announced his team’s search for weapons of mass destruction (WMD) in Iraq came up empty-handed — at least for the time being. Yet had Mr. Kay spent more time around the Senate, he would indeed find WMD, but not of the biological or chemical variety. When it comes to destroying legislative initiatives, these WMD, while only parliamentary, are lethal to lawmaking.

Veteran Hill watchers are talking about a troubling new trend in the U.S. Senate — the increasing use of parliamentary tactics heretofore never utilized to obstruct. Deployment of these new legislative WMD is causing many to ask whether the Senate can still function in today’s modern political world, given that its rules were written in a less fractious and partisan era.

Increased use of the filibuster is one example. Exercising this tactic exploded in the Senate over the past 20 years. While many believe the ability to stall legislation through “extended debate” has always been part of the Senate’s tradition, the Framers of the Constitution did not contemplate it in the original design of Congress. An obscure rules change in 1806 eliminated senators’ ability to offer a motion to cut off debate, thus opening the door for the development of the practice of delay.

Yet during the next 180 years or so, the filibuster was exercised sparingly. According to political scientists Sara Binder and Steven Smith, in “Politics or Principle,” the filibuster was only used 23 times during the entire 19th century. That pattern did not change much until the 1980s, when the use of the filibuster grew exponentially. For example, the 102nd Congress alone (1991-92) witnessed 35 filibusters, according to Ms. Binder and Mr. Smith.

Today, senators face filibusters, or the threat of one, on nearly every piece of legislation. It’s not uncommon for senators advocating a piece of legislation to assume they need 60 votes(thenumber needed to break a filibuster) to consider a bill. Frequent use of this tactic has become like the common cold of the Senate, infecting the process and confining many initiatives to long bed rest.

While filibusters on legislation are an old, but growing tactic, using it to block judicial appointments is a new variation of the legislative WMD; until last year, it was unprecedented. Senate Democrats filibustered six of President George W. Bush’s judges in the past two years, creating an unattainable threshold for many qualified jurists that had the support of a 51-vote majority, but not super majority (60 votes) support. In the case of judicial nominees there is one antidote — the recess appointment — which Mr. Bush utilized recently with the Pryor and Pickering court nominations. At a minimum, the president’s actions will cause the Democrats to choose their battles wisely.

Finally, the newest legislative WMD is particularly stealthy. Democrats now sometimes support legislation in the Senate and then block the bill from moving to conference committee with the House. This tactic essentially stops the legislation from reaching its final stages. One Senate leadership aide called this maneuver “the most troubling new trend in the legislative process.” It’s actually been used before, but its frequency is increasing.

In the past few months, Democrats used this technique to block or delay conference committee action on the Charitable Choice initiative, pension legislation and Mr. Bush’s Healthy Forest Initiatives. Republican criticism of this new tactic led minority leader Tom Daschle to take the unusual step on Feb. 4 of giving a floor speech in the Senate, laying out the acceptable conditions for Democrats to agree to a conference.

Traditionally, once the Senate passes a bill it adopts three routine motions, usually part of one package, agreed to by unanimous consent. One motion insists on the Senate position in a conference committee, another formally requests or agrees to a conference and a third appoints conferees. In the past year, Democrats have objected to these motions, leaving Republicans with the impossible task of mustering 60 votes to break filibusters on motions that routinely pass by voice vote.

Senate rules and precedent should protect the rights of the minority and even the prerogatives of individual lawmakers. The Senate is, after all, the “saucer” that cools the legislative coffee, to paraphrase George Washington.

Yet these rules and precedents were designed in a different era, an epoch prior to red and blue states and severe partisan polarization. How the rules work in this new environment deserves closer examination by the leaders of both parties before partisan proliferation createsevenmoreofthese weapons, further hobbling the process and boosting public cynicism about the Senate.

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