Filibuster Reform On The Agenda In 2013?
Two years ago, in the wake of the 2010 Midterm Elections, many pundits on the left called on Majority Leader Harry Reid and the Senate Democrats to use the opportunity of having a majority to enact filibuster reform in reaction to what many of them perceived as being abuse of the practice by Senate Republicans during the first two years of the Obama Administration. In December of that year, the discussion shifted to a proposal by Oregon Senator Jeff Merkley that would reform the filibuster process by forcing Senators that desire to use the cloture process to block a bill from consideration to demonstrate that they have some minimal level of support. If they couldn’t do that, the bill would be permitted to proceed to a vote on the merits. As I noted when the package was introduced in January at the start of the 112th Congress, there was much in Merkley’s proposal that made sense. For many reasons though, not the least of them being resistance from veteran Democratic Senators who were reluctant to place limits on a tool they believed their party would need in the inevitable event it became the minority, the proposal died a quiet and unceremonious death. Six months ago, fifteeen months afterwards, Harry Reid said he regretted letting the reform proposal die.
Now, with the Democratic majority in the Senate enhanced by two and President Obama back in the White House for another four years, Harry Reid is talking about taking up filibuster reform once more time:
Senate Majority Leader Harry Reid (D-Nev.) pledged on Wednesday to change the rules of the Senate so that the minority party has fewer tools to obstruct legislative business.
In his first post-election press conference, the Nevada Democrat said he wouldn’t go so far as to eliminate the filibuster, which requires 60 votes for the chamber to enter and exit the amendment and debate process. But in remarks meant to preview a more combative approach during the next session, he warned Republicans that obstructionism as a tactic won’t be tolerated — or as technically feasible.
“I want to work together, but I also want everyone to also understand, you cannot push us around. We want to work together,” Reid said.
“I do” have plans to change the Senate rules, he added. “I have said so publicly and I continue to feel that way … I think the rules have been abused, and we are going to work to change them. We will not do away with the filibuster, but we will make the senate a more meaningful place. We are going to make it so we can get things done.”
Reid has gone down this path before, flirting with the concept of rules reform after the 2010 midterm elections. But he backed off the idea under pressure from some of the chamber’s longer-serving members, including those within his own party.
Sources close to the majority leader say the intervening time period has hardened his belief that the Senate is too dysfunctional to leave its rules untouched. And in an interview over the summer with The Huffington Post, Reid outlined the specific details of what he had in store for the next Congress.
“The first thing is the most important thing,” Reid said the interview. “Do away with motion to proceed. Just do away with it. I favor the filibuster. There’s a reason for the filibuster. I understand it. It’s to protect the rights of the minority. The Senate was set up to protect the rights of the minority … so that’s the no. 1 issue, and the rest of the stuff we can deal with if there’s a filibuster conducted. Those are the kind of things — if we get the motion to proceed out of the way, we can debate it, one, to cloture. That’s good. So that’s the no. 1 biggie.”
The precise method by which this could be accomoplished are somewhat controversial, and can only be done at the start of a Senate session at the beginning of a new Congress such as we will have in January. It is the so called “nuclear” or “constitutional” option once threatened by Senate Republicans during the Bush Administration and now being advocated by people on the left such as Ezra Klein as a means by which Senate Rules can be revised without the support of 2/3 of the Senate:.
The constitutional option gets its name from Article I, Section V of the Constitution, which states that “Each House may determine the Rules of its Proceedings.” In order to fulfill this constitutional order, the Senate must be able to, well, determine its rules. A filibuster, technically, is a way to stop the Senate from determining something by refusing to allow it to move to a vote. Because stopping the Senate from considering its own rules would be unconstitutional, the chair can rule against the filibuster, and the Senate could then move to change its rules on a majority vote.
One caveat: Many people, including Udall himself, believe this has to happen at the beginning of a new Congress. If it doesn’t happen at the beginning of a new Congress, then Congress is considered to have acquiesced to the previous Congress’s rules, and a filibuster against further rule changes wouldn’t interrupt the constitutional right to determine the rules.
At this point, all the Democrats would need is for Vice-President Biden, acting in his role as President of the Senate, to rule that the current Senate rule forbidding the filibuster rule from being revised without the support of 67 members is unconstitutional. At that point, the Democratic majority could eliminate, or significantly revise, the filibuster rule by a simple majority vote. Appealing the decision to the Federal Courts isn’t really an option since the Courts have generally declined to intervene in the right of Congress to establish its own procedural rules.
Matthew Yglesias notes that there seems to be a far better chance of filibuster reform in 2013 than there was in 2011, and I think he’s got a point. There are far more younger members of the Democratic caucus now than there were two years ago, so the resistance of veteran members of the caucus may not be as big an obstacle as it was the first time around. Additionally, several Senate veterans, including Reid’s Number Two Senator Dick Durbin, have also expressed support for the idea of filibuster reform, which suggests that perhaps the resistance that we saw two years ago won’t be there this time around, especially if the reforms that end up being implemented are limited in scope. Of course, the odds of reform looked pretty good at this time two years ago and it all came to naught by the time January rolled around, so it’s hard to say exactly what will happen.
As always, the devil is in the details with proposals like this. People like Ezra Klein would have Reid push to eliminate the filibuster entirely, which be a radical change to Senate rules likely to be resisted by Republicans and many Democrats alike. Even Senator Merkley’s modest reform proposals met with resistance from Democrats who wanted to preserve the filibuster’s power for that inevitable time when they would be in the minority. While Reid’s proposal is very non-specific at this point, it certainly doesn’t come anywhere close to full filibuster repeal, and also seems to be far less ambitious than the Merkley plan. Essentially, all Reid is proposing to do is eliminate the Motion To Proceed, which would remove one step that a minority can use to block consideration of a bill while still preserving cloture rights and the right to filibuster. Abstractly, it doesn’t seem all that objectionable, although we’ll have to wait until a formal proposal is made before we know exactly what Reid is talking about here.
In any event, it appears that Senate Democrats are going to make another run at filibuster reform in January. The question is whether they’ll drop the ball like they did two years ago.