Democrats Lack Votes For Filibuster Reform
Much to the disappointment of Ezra Klein and others, it's unlikely that Democrats will have the votes necessary to change the filibuster when the 112th Congress convenes.
As James Joyner noted yesterday, Ezra Klein and others have been pushing Democrats to reform the filibuster in order to make it easier for legislation to get through the Senate. For the moment at least, though, it appears that Democrats lack the votes even to invoke the so-called “nuclear option”:
Senate Democrats do not have the votes to lower the 60-vote threshold to cut off filibusters.
The lack of support among a handful of Senate Democratic incumbents is a major blow to the effort to change the upper chamber’s rules.
Democratic leaders in both the House and Senate are pushing for filibuster reform at the start of the new Congress next year.
Five Senate Democrats have said they will not support a lowering of the 60-vote bar necessary to pass legislation.
Another four lawmakers say they are wary about such a change and would be hesitant to support it.
A 10th Democrat, Sen. Carl Levin (D-Mich.), said he would support changing the rule on filibusters of motions to begin debate on legislation, but not necessarily the 60-vote threshold needed to bring up a final vote on bills.
Not surprisingly, many Demcoratic Senators recognize the fact that, while the filibuster is a pain now, it could prove useful in the future:
“It won’t happen,” said Sen. Dianne Feinstein (D-Calif.), who said she would “probably not” support an effort to lower the number of votes needed to cut off filibusters from 60 to 55 or lower.
Sen. Daniel Akaka (D-Hawaii) echoed Feinstein: “I think we should retain the same policies that we have instead of lowering it.
“I think it has been working,” he said.
Sen. Mark Pryor (D-Ark.) said he recognizes his colleagues are frustrated over the failure to pass measures such as the Disclose Act, campaign legislation that fell three votes short of overcoming a Republican filibuster Tuesday.
“I think as torturous as this place can be, the cloture rule and the filibuster is important to protect the rights of the minority,” he said. “My inclination is no.”
Sen. Jon Tester, a freshman Democrat from Montana, disagrees with some of his classmates from more liberal states.
“I think the bigger problem is getting people to work together,” he said. “It’s been 60 for a long, long time. I think we need to look to ourselves more than changing the rules.”
Sen. Ben Nelson (D-Neb.), who is up for reelection in 2012, also said he would like the votes needed for cloture to remain the same.
“I’m not one who think it needs to be changed,” he said.
And, they’re right. The filibuster as it exists has been in place for decades and has served very well it’s primary function of ensuring that the minority has the voice it was intended to, and to ensure that the Senate serves it’s intended function of putting a brake on the populism of the House of Representatives.
This is a concept that James Madison communicated quite well when spoke of the reason why the Senate provided equal representation to the states regardless of size in Federalist No. 62:
[T]he equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
Thanks to the passage of the Seventeenth Amendment and other changes in American politics over the past two centuries, the “protection of the states’ purpose of the Senate has been muted somewhat, but the Senate still plays the role that Jefferson and Washington anticipated it would:
The “Senatorial saucer” conversation between George Washington and Thomas Jefferson is part of U.S. Senate legend. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate.
“Why,” said Washington, “did you just now pour that coffee into your saucer before drinking it?”
“To cool it,” said Jefferson; “my throat is not made of brass.”
“Even so,” said Washington, “we pour our legislation into the Senatorial saucer to cool it.”
It’s unclear if this conversation ever actually took place, and it’s probable it didn’t, but it nonetheless describes quite aptly the role the Senate, and the filibuster, plays in our system. There’s no reason to change it.