GETTING TO YES IN THE SENATE: Bipartisan collaboration by senators avoids nuclear showdown on filibustering

Getting to Yes in the U.S. SenateWho says the center cannot hold? Hundreds of news sources last night and this morning have reported that a group of U.S. Senate moderates from both sides of the political aisle successfully negotiated a truce in the increasingly contentious battle over filibustering in the Senate, narrowly averting what could have been full-scale war between Democrats and Republicans.

Seven Democrats and seven Republicans worked against the clock over a four-day period to craft a memorandum of understanding regarding nominations of judges. The agreement allows for floor votes on the nominations of Janice Rogers Brown, William Pryor and Priscilla R. Owen, but preserves the right of Democrats to filibuster judicial nominees “under extraordinary circumstances”. The signatories to the memorandum of understanding also agree to oppose any rules change in Congress which would eliminate the judicial filibuster. Finally, the agreement urges the White House to consult with members of the Senate, both Democrats and Republicans, before submitting judicial nominees for consideration.

This agreement averts the threat of the so-called “nuclear option”—the Republicans’ proposed ban on judicial filibustering.

From a dispute resolution practitioner’s perspective, this memorandum of understanding demonstrates the soundness and success of the principles of interest-based negotiation. The text of the agreement itself, and statements made by the senator-negotiators at the press conference announcing the agreement, reflect the language of collaboration and shared interests.

The agreement contains the following preamble which sets a tone of civility and moderation that evidently characterized the negotiations among these senators:

We respect the diligent, conscientious efforts, to date, rendered to the Senate by majority leader Frist and Democratic leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress. [Emphasis added.]

The agreement also invokes the principle of “good faith”, specifying that signatories will rely upon it in “exercis[ing] their responsibilities under the advice and consent clause of the United States Constitution.” The agreement further stipulates that the signatories will be guided by “the spirit and continuing commitments made in this agreement” in opposing any Senate rules changes regarding judicial nominations.

The agreement concludes by stating the shared goal of the signatories—“to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate”—and then affirms the signers’ common belief that “this agreement is consistent with the traditions of the United States Senate that we as senators seek to uphold.”

At the press conference announcing the agreement, Senator John McCain, a Republican from Arizona who played a leading role in the creation of the agreement, told reporters, “This agreement is meant in the finest traditions of the Senate it was entered into: trust, respect and mutual desire to see the institution of the Senate function in ways that protect the rights of the minority.” McCain’s language recognizes that mutuality of goals and interests informed the dialogue which produced the agreement, as well as the agreement itself.

Senator Robert Byrd, a Democrat from West Virginia, used similar language: “I am very proud of these colleagues of mine on the Republican side and the Democratic side. We have lifted ourselves above politics. And we have signed this document in the interest of United States Senate, in the interest of freedom of speech, freedom of debate and freedom to dissent in the United States Senate.”

The full text of the memorandum of understanding is available at the New York Times web site (to view the article you may need to register at their web site first—fortunately registration is free).

While no doubt there are some on both ends of the political spectrum who remain unhappy with the agreement announced last night, the 14 senators who forged this historic agreement demonstrated the progress that can be achieved when negotiations are conducted in an atmosphere of civility and respect. By placing their focus on common goals and mutually beneficial outcomes, these seven Republicans and seven Democrats offer a valuable lesson in the effectiveness of collaborative efforts in resolving seemingly intractable differences.

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