Cloture, Payback and the Power of the Purse

"cloture - The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. "

There's been alot of talk about cloture since the Democrats took over in the Senate. In fact, as of September 19, 2007, there have been 56 cloture votes, 2 less than the previous record of 58, and the number is expected to more than double by the end of this Congressional term in 2008. So what exactly is this cloture? While the 60 votes required to pass cloture are often mentioned in the media, an explanation of what exactly it is have not been. I'm going to attempt to explain briefly the basics of cloture and, in addition, discuss a little bit about how the Democrats can use the "Power of the Purse" to play hardball with the Republicans.

For an example of cloture look at the Reed-Levin amendment which is (was?) a proposed amendment to the Department of Defense spending bill that sets a deadline/timeline for bringing the troops home from Iraq. Back in July of this year the Democrats hoped to vote on the amendment in the Senate. The majority of the Senate Republicans did not want the amendment to pass or to even be voted on so they threatened to filibuster. But they didn't actually filibuster, they just threatened to.

In order to prevent the usual "up or down" Senate vote which requires a simple majority (51 votes if all 100 Senators are voting) the Republicans have been habitually threatening to filibuster in order to block the vote on any bill that they see as being the least bit partisan. As many people have pointed out, anyone who has seen the film Mr. Smith Goes to Washington, knows that the traditional filibuster is when Senators, usually those of the minority party, stage endless debate on a bill, amendment etc. in order to block the majority party from voting and passing it.

That was the old-school filibuster. It was used in the 1960's by Southern Democrats to stall the passing of Civil Rights Legislation. A filibuster could last for days or weeks and prevent not only the passing of bills, etc. but also prevent the Senate from conducting any other business.

Over the past thirty years or so there has been a shift towards "procedural agreements" that allow the minority party to just threaten a filibuster to have the same effect as if they actually did filibuster: the filibuster is now more of a virtual concept than an actual event.

How it works is that once the minority party, in this case the Republicans, threaten to filibuster an item up for debate, in this case the Reed-Levin amendment, the majority party, the Democrats, in an effort to not only save themselves from possible round-the-clock sessions but also to allow the Senate to work on other matters, automatically invoke cloture, the Senate procedure that limits debate on an item being considered. If it passes cloture the item can continue through the Senate process, if it doesn't it can be shelved and reconsidered at a later time.

During an old-school filibuster cloture was usually invoked when the majority party thought it had the 60 votes for it to pass. (This is a supermajority of votes meaning that no matter how many senators are voting , 60 votes are required, not just a percentage of the total Senators present.) If they did not have the 60 votes the debate could continue as long as the opponents of the item had the will to keep it going. However, because of the relatively recent procedural agreements that have streamlined the process and also because of the tenuous majority held by the Democrats in the Senate of the 110th Congress, cloture has evolved into a slightly different, largely defensive procedure. For the Democrats cloture has become a routine method of responding to what they view as the Republicans' obstructionist use of the "virtual" filibuster .

So the Republicans threatened to filibuster and Sen. Harry Reid automatically invokes cloture. No fuss no muss: the old-school filibuster is averted and the cloture procedure goes into affect. For one full day after cloture is invoked the matter is set aside. Then on the second day up to 30 hours of debate are conducted and then the cloture vote is held. However, according to a Congressional Research Service report titled "Filibusters and Cloture in the Senate" while there are various standard rules to follow once one a party invokes cloture these rules can be bent to a certain extent if agreed to by mutual consent.

Republicans are threatening to filibuster practically any bill that the Democrats introduce. As a result Sen. Reid has been forced to use cloture as a way to conduct the day-to-day business of the Senate. Most bills introduced by the Democrats are requiring 60 votes instead of a simple majority to be passed. For instance, the Reed-Levin amendment had a chance of passing and becoming part of the defense spending bill with a simple majority (it had 52 of the 60 votes needed for cloture) in which case it could have been sent to President Bush. He would have been forced to veto it if he didn't want it to become law. But rather than have the President be forced to publicly veto a bill that would effectively end the war, and give more publicity to his unwillingness to compromise, the Republicans forced the Democrats to have to get 60 votes for a bill that with 52 possible votes had a chance of passing if it had only needed the usual majority vote of 51%.

However, Republican efforts have no real effect beyond obstructing the business of the Senate since for any Democratic backed-bill to over-ride a Presidential Veto and actually pass into law, it would require a two-thirds vote of both houses of Congress which is very unlikely to happen with or without filibustering or cloture. So in effect the Republicans are trying to make the Democrats look as bad as possible: "Those Democrats can't even get a bill passed let alone send one to the President", etc.

And even if there is a possibility that the Democrats might manage to get a bill passed, the Bush Administration complains. Over the weekend, in his radio address, the President complained about the State Children's Health Insurance Program, which Congress will be having final votes on this week, saying that the "Democrats in Congress have decided to pass a bill they know will be vetoed". What he doesn't say is that the only reason the bill made it past a cloture vote earlier this year was because Republicans contributed to the necessary 60 votes.

However, the Democrats do have at least one possible way of getting around the Republican filibuster roadblock. The so-called, "power of the purse". Wolf Blitzer asked Hilary Clinton about it yesterday on this Sunday show. She very conveniently was able to say that she had voted against the Iraq spending bill last May. That's true but she voted against it knowing that it was going to pass.

There was no Republican threat to filibuster that bill. But it was the Democrats who allowed it to come up for a vote in the first place. They didn't have to. That is what is behind the power of the purse. The Democrats are in power in Congress. And because they are in power they control which bills are put on the calendar and sent to the floor for debate and possible vote. They don't even have to put the bills that fund the Iraq War on the calendar.

Senator Biden and other Democratic members of the House and Senate have said that they do not want to halt funding because they feel it might endanger the troops. Haven't they heard of negotiation? Isn't that what they do in Congress? Threatening to cut off funding doesn't mean they actually have to cut off all funding (though to be honest alot of us would prefer they did). The Republicans might be a little more agreeable to reducing troop strength if the Democrats threatened to not allow any funding at all.

Also the next time the Republicans threaten to filibuster an Iraq spending bill. Let them. And I don't mean the 30 hour filibuster on the Reed-Levin amendment that Reid forced back in July after he had invoked cloture. I mean, forget the cloture vote and force the Republicans to hold an old-school filibuster. If they feel so strongly about the Iraq War force them to fight for it on the floor of the Senate.

In my last post I discussed a little bit about how the Republicans play a kind of hardball that the Democrats are maybe too principled to get into. But maybe this is their chance to play. Sure the Republicans are going to accuse the Democrats of endangering the troops. But aren't they already doing that? Whatever the Democrats do the Republicans are going to spin it to make the Democrats look bad. They might as well do exactly what they promised to do to get elected and to hell with how the Republicans spin it. As for the press, they are criticizing the Democrats more for not delivering on their campaign promises than for anything else.

Let the Republicans cry foul. So what! What have Democrats got to lose? Are they afraid of some kind of Republican retribution down the line? What could the Republicans do that they haven't already? Remember how they went after the Clintons before, during and after Bill was President? Come on, isn't it time that maybe the Democrats indulged in a little payback? And it wouldn't be the kind of self-serving payback that the Republicans are known for, it would be payback in service of a very good cause.