The Senate took the unusual step of keeping the first “legislative day” running for three weeks to negotiate and pass rule changes under the so-called ‘constitutional option’ that requires 51 votes rather than the usual 67 votes.  They convened on January 5 and immediately recessed until January 25. The day ended without the results hoped for by lead sponsors of the H Res 10 Rules Reform Package, Senators Tom Udall (D-NM), Tom Harkin (D-IA), and Jeff Merkley (D-OR).  Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) did agree to allow votes held two days later on the less sweeping changes.
In the 111th  Congress (2009 and 2010), Senate Republicans exploited existing rules to tie up executive branch nominations and to filibuster legislation forcing 60 votes on virtually all significant bills, both on final passage and even stalling motions to proceed with debate 26 times.  Rules also allow Senators to place a ‘secret hold’, often for parochial reasons, disallowing legislation and executive branch nominations to be brought to the floor for debate.  On 70 occasions, a single Senator held hostage executive branch nominations on grounds unrelated to nominee’s qualifications, by placing ‘secret holds’ on them.  Senate Democrats also used rules in their favor by placing strict limits on amendments the minority could offer.  These are among the abuses used to stop legislation or at least stall consideration that H Res 10 addresses.

On January 27, the Senate succeeded in passing two rule changes.  The first (S. Res. 28) ends the practice of placing anonymous ‘secret holds’ and instead requires that Senators publicly disclose their intent to stop nominations and legislation from moving forward.  The resolution passed 92-4.  Ironically, three of the dissenting votes were cast by the members of the Senate Tea Party Caucus (Senators Jim DeMint (R-SC), Rand Paul (R-KY) and Mike Lee (R-UT)), which has espoused transparency.  The second rule change (S. Res 29) ends the practice of permitting a Senator to ask for the reading of the text of legislation or an amendment if the text has been available for 72 hours.  During the health care debate a reading was requested which took over 7 hours.  The resolution passed 82-15 with all dissenting votes coming from Republicans.  Three further resolutions all relating to the filibuster rule failed to garner the two-thirds vote necessary for passage.

Senators Reid and McConnell also made several verbal agreements.  Both agreed that they would not use the ‘constitutional option’ to change Senate rules with a simple majority vote in this Congress nor in the next.  Senator Reid committed to allowing greater access to the amendment process for the minority party while Senator McConnell committed to reducing the use of the filibuster on motions to proceed with legislation.  The two Senate leaders also agreed to a more expedited process for hundreds of lower-level executive branch appointees.

In the last Congress the Senate increasingly became a chamber ruled by the minority utilizing the rules to stop legislation with 41 votes. Although many believe that the rules have been abused, some Democrats are squeamish about reining in the power of the minority because they are facing an uphill battle to remain in the majority after the 2012 election.  In 2012, 23 of the 33 Senate seats up for reelection are held by Democrats and the two Independents who caucus with them.  The verbal agreement between Senators Reid and McConnell not to use the ‘constitutional option’ leaves in place the rules most subject to abuse.

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