If any word characterizes the current Congress, it’s “obstruction.” The best-known tactic for blocking your political opponents is, of course, the filibuster, an antique tool that has seen such heavy use lately that critics have begun calling for it to be abolished.
If it is, though, the impulse is unlikely to die with it. The arcane procedural rules on Capitol Hill, especially in the Senate, offer legislators any number of obscure ways to thwart the plans of their opponents—and, says Bruce Oppenheimer, an expert on Congress at Vanderbilt University, some are already being considered as parties gird for more, and messier, battles. According to Oppenheimer and other observers, here are five to watch out for:
The best way to prevent a vote you’re going to lose? Don’t show up. Without a quorum of a simple majority of members, a vote can’t happen—which is why Wisconsin Democrats fled the state to block a vote on an anti-union bill in February of 2011. (It’s a time-honored tactic: In 1840, a Chicago legislator named Abraham Lincoln jumped out a second-story window rather than allow a vote to take place that would have killed the State Bank.) In Washington, the move is dramatic but effective: In 1988, arrest warrants had to be issued to 46 Senate Republicans who walked out on a vote on limiting congressional election spending. The gambit worked—the campaign finance reform bill was killed and the issue wasn’t taken up against for another eight years.
To get business done in the rule-bound Senate, waiving certain formalities is a daily necessity. Many uncontroversial and minor measures pass without debate.
The catch is that they require unanimous consent: If any single Senator objects, the request is rejected and work effectively can’t proceed. That’s just what happened in June 2010, when Republican Senator Ron Johnson of Wisconsin blocked all unanimous consent calls, declaring that debt ceiling talks needed to stop being held behind closed doors.
Johnson’s threats to shut down the Senate lasted only two hours, but experts expect to see the move happen more often in the future.
As bills leave the committees where they are initially hammered out, they’re typically placed on the calendar for a possible vote by the full chamber—unless a Senator uses a “layover rule,” which triggers a required delay of up to three days while the measure is published and considered.
That may not seem like much, but depending on the congressional schedule it could be enough to derail a law. In 1995, Senate Minority Leader Robert Byrd—a Democrat known for crafty use of Senate procedure—refused to waive the rule on an unfunded mandates bill the Republicans were pushing hard.
He managed to delay action for a full two weeks, capping a delaying process that involved 44 roll-call votes and the disposal of more than 30 amendments. Majority Leader Bob Dole called it “Byrd-lock.”
One of the easiest methods to obstruct your opponents’ legislation is also one of the most aggressive. If you are in the Senate majority party and want to kill a proposed law, you simply convince your leader to refuse to schedule a vote. The proposed law can be introduced, approved, and amended by the relevant committees, reported to the floor, and even put on the Senate legislative calendar. But—what do you know?—it turns out the timing just isn’t right to vote on this issue. When is a better time? Well, we don’t know that, either.
The House rules contain the curious provision that on Wednesdays, “each standing committee may bring up for consideration any bill that has been reported on the floor on or before the previous day.” This is normally skipped by unanimous consent. A really creative legislator could simply refuse to dispense with it, and insist on discussing noncontroversial bills and other trivia. It might not affect the bills being discussed, but it would surely do the real job at hand: Slow. Everything. Down.
Jordan Michael Smith is a contributing writer at Salon.