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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.

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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. Geek, Esq. says:

    This is tweaking, at most.

    Filibuster should go in the case of judicial appointments, and face restrictions for executive branch appointments.

    For legislation it should be kept but made much more difficult to use.

    Like or Dislike: Thumb up 5 Thumb down 0

  2. Unsympathetic says:

    If Republicans were at all interested in the difficult and mundane work of actual governance, this would be entirely unnecessary. In addition to filibustering everything, I also look forward to the inevitable endless Republican investigations of meaningless things before the push for impeachment.

    Like or Dislike: Thumb up 4 Thumb down 0

  3. Blue Shark says:

    Swear to God…

    …If I hear the words “Gentleman’s Agreement” I am going to commit a dangerous act.

    Like or Dislike: Thumb up 2 Thumb down 0

  4. David M says:

    I think it’s highly unlikely that the filibuster will be eliminated completely, although I’m hopeful it’s use can be restricted.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Alex says:

    Angus King (the new Independent Senator from Maine) has said that filibuster reform is one of his top issues. If he really cares that much, he could make it a condition of his joining the Democratic caucus.

    Like or Dislike: Thumb up 6 Thumb down 0

  6. Tony W says:

    As far as I can tell the filibuster serves no purpose other than to keep legislation and appointments from being considered on their merits. It gives tremendous de-facto power to tiny-population states like Wyoming while largely disenfranchising larger states like New York and California.

    I would hope that if nutty legislation is approved without filibuster, then perhaps the voters will pay closer attention to whom they send to represent them in the hallowed halls. If not, then I suppose voters deserve what they get.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. Tsar Nicholas says:

    The filibuster entirely should be eliminated. To the victors belong the spoils. Instead of whining about it the GOP should learn how to win more elections.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. rudderpedals says:

    This is a special time. Because it’s a new session neither Biden nor 2/3 nor even 60 votes are needed to adopt senate rules that include filibuster reform.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. Just Me says:

    I think filibuster should be in place for legislation. A filibuster may be the only way to slow down, or negotiate minority opinion.

    However I have always believed that appointments by the president shouldn’t be subject to filibuster.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Dazedandconfused says:

    They should modify the rule so that filibusters require filibustering.

    Sad, but the existing rule assumed principled application, and that’s not happening.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. LC says:

    I don’t hold out a lot of hope for filibuster reform but think it could be done without killing it completely. The goal should be, simply, to make it hard. So, for example:

    1. No more “gentlemen’s agreement”. If you are going to filibuster, you must hold the floor.

    2. Limit the number of filibusters for the 2-year legislative term. There could be separate limits for bills and appointments based on, say, an absolute number or % of bills passed in the previous Congress. The goal, again, is to require the minority party to ask itself “do I care enough about this to use up one of my filibuster allocations”?

    3. Get rid of all the time-killing stuff that is a part of the filibuster process.

    4. Prohibit filibusters of any appointment that gets out of a committee with bi-partisan support.

    Also, there is no justification at all for holds, open or hidden. As I understand it, this is just a practice that started decades ago to ensure that Senators had time to review a bill before voting on it. So, simple: require publication of a bill’s contents x hrs/days before a committee hearing and floor vote. No holds on appointments. Period. Or, if Democrates don’t want to give that up, thinking of the future, make it rare. No more than one hold on an appointment per Senator per 2-year session or some other limit that keeps Senators from using it solely to be obstructionist.

    Like or Dislike: Thumb up 2 Thumb down 0

  12. Tillman says:

    This won’t even slow down the obstructionism all that much. All it will do is force the Republicans to actually argue something for once. That alone makes it worth it, mostly because I suspect their arguments aren’t really that great.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. Just Me says:

    2. Limit the number of filibusters for the 2-year legislative term. There could be separate limits for bills and appointments based on, say, an absolute number or % of bills passed in the previous Congress. The goal, again, is to require the minority party to ask itself “do I care enough about this to use up one of my filibuster allocations”?

    This one won’t fly.

    The majority party is in charge of which bills get to come to the floor or not (this is why almost 40 jobs bills sent from the house aren’t being brought to the floor-the GOP isn’t stalling them). It would be way too easy for the democrats to game the system and hold all the bills the GOP would filibuster until they rant out of their allotted filibusters).

    I would actually just like the senate to pass a budget-something they haven’t done since 2009 and something that only needs a simple majority.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. EMRVentures says:

    I think they should take the midpoint course and make filibusters into filibusters again. You want to filibuster something, get up at the podium and read the phonebook 24 hours a day. This would give the public the proper visual on what is happening to legislation, and end the ridiculous media coverage that says “the legislation failed on a 53-47 vote.”

    Like or Dislike: Thumb up 3 Thumb down 0