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Democrats May Be Short On Votes For Filibuster Reform

Last week, I noted that there’s been a renewal of talk about filibuster reform in the Senate when the 113th Congress comes into session on January 3rd. We went through this two years ago, of course, and the entire idea ended up being abandoned largely because Senate Majority Leader Harry Reid was unable to unite his own caucus sufficiently to come up with a majority in support of even the modest reform that was being proposed at the time. That’s one of the reasons, I assume, that Reid’s discussions about filibuster reform this time around are even more modest that the 2010 proposals. Despite that, though, it appears as though he’ll have trouble putting together a Democratic majority in favor of reform:

Democrats don’t have the 51 votes they need in the Senate to change filibuster rules that could make it harder for the GOP minority to wield power in the upper chamber.

Lawmakers leading the charge acknowledge they remain short, but express optimism they’ll hit their goal.

“I haven’t counted 51 just yet, but we’re working,” said Sen. Tom Udall (D-N.M.), a leading proponent of the so-called constitutional or “nuclear” option, in which Senate rules could be changed by a majority vote

“We’re building the momentum right now,” Udall said. “It’s hard to say at this point, but I think it’s looking very good. The last two years have really helped coalesce people’s minds around the idea that we need to change the way we do business.”
The problem for Udall and other supporters of filibuster reform is that many veteran Democratic senators remember when the filibuster was a useful tool in their years in the minority.

In the tradition-bound Senate, these veterans aren’t thrilled with changing the upper chamber’s rules, particularly with the use of the controversial constitutional option — which has never been used to change the chamber’s rules.

(…)

All seven Democratic senators-elect — Tammy Baldwin (Wis.), Martin Heinrich (N.M.), Heidi Heitkamp (N.D.), Mazie Hirono (Hawaii), Tim Kaine (Va.), Chris Murphy (Conn.) and Elizabeth Warren (Mass.) — have pledged to support filibuster reform. Sen.-elect Angus King (I-Maine) made filibuster reform a central plank of his campaign.

But Democrats can’t count on a number of their “old bulls,” as was reflected by a vote just two years ago.

Udall, Sen. Jeff Merkley (D-Ore.) and Sen. Tom Harkin (D-Iowa) proposed a package of reforms for the 112th Congress that would have eliminated filibusters on motions to proceed to new business. Their package also would have required senators wanting to hold up legislation or nominees to actually hold the floor and debate, and shortened to two hours the time that must elapse after a filibuster on a nominee has been cut off.

The package failed in a 44-51 vote, with Democratic Sens. Jim Webb (Va.), Max Baucus (Mont.), Herb Kohl (Wis.), Mark Pryor (Ark.), Jack Reed (R.I.) and Reid voting no. Democratic Sens. Dianne Feinstein (Calif.), John Kerry (Mass.) and Daniel Inouye (Hawaii) did not vote.

Even with Kohl and Webb retiring and Reid supporting filibuster reform this time, there’s no guarantee Democrats would be successful — particularly with the use of the controversial constitutional option.

This isn’t entirely a surprise. As I’ve noted before in discussions about the filibuster, veteran members of the majority tend to have a different perspective on the issue of minority rights under Senate Rules than the “young guns” do. They remember  the days when their own party was in the minority, which at this point was a mere six years ago, and they recognize the value of preserving the rights of the minority to have a voice in the Senate.  As I’ve said before, the dream of many progressives of eliminating the filibuster entirely is simply not going to happen. It’s a mechanism that has existed virtually since the first time the United States Senate convened, and there will never be 51 votes to eliminate it completely.

Jonathan Bernstein thinks reluctant Democratic Senators should sign on to radical reform as a way to bring the GOP to the table:

Democratic holdouts are correct to be concerned about the effects of radical reform. Not only will Democrats wind up in the minority at some point in the future and want those protections, but without careful design reform could easily turn the Senate into a second House of Representatives. It’s very understandable that individual senators want to protect their own rights and don’t want to transfer their influence to their party leadership.

But that’s why reluctant Democrats should sign on — and develop their own reform package. Do reluctant Democrats, for example, really believe that a 60-vote Senate is needed to prevent majority tyranny and to preserve the importance of individual senators? They shouldn’t; the Senate successfully avoided majority-party tyranny for two centuries before the true 60-vote Senate showed up recently.

What reluctant senators should do is not only sign up for reform but also threaten that they’ll vote for radical reform . . . unless Republicans agree to sit down and bargain out a more sensible set of reforms that would preserve the filibuster in many cases (but not all).

The problem with this argument is that this is, in some ways, exactly the type of scenario these Senators were presented with two years ago. The filibuster reform package proposed by Oregon’s Jeff Merkley was, in the end, rater modest in its scope and yet it failed to garner enough support to garner the support of the 51 Senators needed to invoke the so-called “nuclear option.” What makes Bernstein think that it will happen this time around? In fact, one of the things holding some of these reluctant Senators back is the very act of invoking the “nuclear option” to begin with and the prospect that it could set a precedent that would lead to more frequent, and major, rules changes in a body whose rules have been relatively stable over the years. For that reason alone, long time Senators like Diane Feinstein, who opposed filibuster reform the last time around, may be reluctant to pull the trigger this time and Democratic dreams of filibuster reform may go up in smoke.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Brummagem Joe says:

    Filibuster is never going to be completely eliminated but there is a fair chance it will be modified and what makes Bernstein think it will be different this time is the change in the Democratic caucus. The likelihood of a change is also somewhat dependant on the Republicans. If they are perceived to be blatantly abusing cloture as during the two previous congresses when I think they invoked it over 400 times then this is going to provoke a reaction amongst Democrats. I suspect this may come to a head over confirmations for the new administration and the Judiciary. Some Republicans for example are already talking about trying to block the move out of committee of Kerry or Rice for SoS which intransigence seems guaranteed to provoke a response.

    Like or Dislike: Thumb up 3 Thumb down 0

  2. Vast Variety says:

    I don’t mind the fillibuster rules, I just think they should actually be required to be present on the floor of the Senate and in debate to to it.

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Anderson says:

    If Reid can’t get at least some reform — say, eliminating it for appointments, or reducing the 60 votes for cloture to 55 — then maybe the Senate needs a new majority leader.

    Like or Dislike: Thumb up 1 Thumb down 1

  4. Geek, Esq. says:

    Keep it for legislation, drastically curtail it for executive and judicial appointments. If the Senate wants to gum up its own works with the filibuster, so be it, but 41 Senators shouldn’t be able to hinder the operations of all three branches by sitting on their hands.

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  5. James Joyner says:

    @Anderson: @Geek, Esq.: I think eliminating the filibuster on confirmations is something that Senators should support on a bipartisan basis. The real hurdle is trust: Right now, Democrats control the White House and Senate. What guarantee is there that, in the event the Dems retain control of the Senate but a Republican wins the White House in 2016 that they’ll keep the new rule? As a practical matter, it would be a lot easier to achieve that trust in the flip situation: one party controlling the White House and another the Senate.

    Like or Dislike: Thumb up 2 Thumb down 0

  6. sam says:

    @Vast Variety:

    I don’t mind the fillibuster rules, I just think they should actually be required to be present on the floor of the Senate and in debate to to it.

    Absolutely. As it is now, a senator can be poolside someplace and phone in to filibuster. Ridiculous.

    Like or Dislike: Thumb up 6 Thumb down 0

  7. Geek, Esq. says:

    @James Joyner:

    The shoes were on the exact opposite feet in 2005 when the Gang of 14 negotiated their way around the dilemma. Things have gotten even worse since then.

    As far as trust is concerned, the only thing the parties can really trust is that they will find themselves in the opposite position some day. But, both parties can and should agree that elections have consequences.

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  8. Tsar Nicholas says:

    The filibuster is the hobgoblin of the milquetoast.

    Like or Dislike: Thumb up 0 Thumb down 1

  9. Just Me says:

    I think they should at least make a case for eliminating the filibuster for appointments.

    I think there is a place for the filibuster when it comes to legislation-especially in a situation where the minority party is also the minority in the house and doesn’t hold the white house. The ability to filibuster in that situation may be the only way to slow legislation down.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Davebo says:

    Someone please take Tsar’s thesaurus from him!

    After all, cleverly worded drivel is still drivel.

    Like or Dislike: Thumb up 3 Thumb down 0

  11. Geek, Esq. says:

    Angry McBitter and Little Lindsey’s temper tantrum over Susan Rice (they were waterboys for Condoleeza Rice–funny how that works) underscores why we need to nuke the filibuster for executive appointments.

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  12. RWB says:

    I agree with Vast Variety – make them actually work for the filibuster. Lets give the public a show and see how well pure obstructionism holds up in the light of day.

    Like or Dislike: Thumb up 2 Thumb down 1

  13. danimal says:

    Prediction: the Supreme Court will be in crisis within the next 4 years if nominations are still fililbuster-able. There is no way the GOP will allow a liberal (or even moderate) nominee replace a conservative on the court. They will filibuster until the end of days before allowing a Dem nominee replace Scalia, Alito, Thomas, Kennedy or Roberts (yeah, he’s still conservavtive). And a retirement is certainly possible as the SCOTUS justices continue to get older. (Of course, Ginsburg is the most likely retirement in the next few years, but replacing her doesn’t change the make-up of the court like replacing a conservative would.)

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