Outside the Beltway

Filibuster Reform Hitting A Snag?

Doug Mataconis · Thursday, January 3, 2013 · 9 comments

Greg Sargent reports that Filibuster reform efforts in the Senate seem to have stalled:

It passed with little attention amid the fiscal cliff fighting, but on the Friday before New Year’s Day, Dem and GOP Senators released a package of reforms to the filibuster that has been watered down in order to gain bipartisan support.

But the proposal — spearheaded by Senators Carl Levin, Chuck Schumer, John McCain, and others — is so weak that one of the leading filibuster reformers in the Senate, Jeff Merkley, tells me he will vote against it if it comes to the floor, and will urge other liberal colleagues to do the same.

“If Levin-McCain comes to the floor in its current form, I’ll vote against it,” Merkley told me today. “I’ll certainly encourage others to oppose it.” Indeed, Merkley adds that the current package of reforms would further enable minority obstructionism — and constitutes a gift to Republicans.

That Merkley is sounding the alarm in this fashion suggests the prospects for real filibuster reform may be very bleak. If Merkley can round up some liberal votes against the final package, that might not stop it from passing, but it could cast real doubt on the seriousness of the proposal.

The problem is that the compromise nixes one of the ideas sought by Merkley and other reformers: The so-called “talking filibuster,” which would force the minority to play a much more public role in blocking legislation, which in theory would discourage it because it would reveal obstructionism to the public.

Instead, the watered down set of reforms would require senators to take the step of blocking legislation on the floor of the Senate — which is now not required — but not to continue talking. The idea behind crafting a set of reforms that can win bipartisan support is that Dems won’t have to pass it with the so-called “Constitutional option,” i.e., a simple majority vote, something that senior Democrats have balked at doing.

But the result of going this route in the name of bipartisan comity will be filibuster reform that is borderline meaningless, Merkley said. He argues that unless Senators are forced to fully carry out the filibuster in the eye of the public and media, there will be no political price or disincentive for obstructionism.

“Currently, the powerful tool the minority holds is the secret silent filibuster, which can secretly kill bills,” Merkley says. “This does nothing to solve the heart of the problem.”

Merkley adds that under the current proposal the minority will have two additional amendments on every bill — a response to the demands of Republicans who are angry of being deprived of the right to offer them. The amendments, Merkley worries, will give the minority an easy way to insert poison pills into legislation, an added tool of obstructionism. “This gives even more power to the minority,” Merkley says.

It also appears that Reid will use them same procedural device that was used four years ago to extend the Senate’s first legislative day as a means of allowing him to determine just how far filibuster reform can go before putting it to a vote:

He has a chance to go “nuclear” Thursday, but instead Senate Majority Leader Harry Reid plans to punt a decision on the filibuster until later this month.

With a new Congress being sworn in Thursday, Reid had threatened to invoke what critics call the “nuclear option”: Changing filibuster rules by 51 votes on the first day of a new session, circumventing the usual requirement in which at least 67 senators are needed to change Senate rules.

Instead, he’ll employ a circuitous procedure to technically keep the Senate in its first legislative day by sending the chamber into recess — rather than adjourning. That move would keep the Senate in session, preserving his option of pushing forward with the so-called nuclear option at a later date.

That will buy Reid time for further negotiations with Senate Minority Leader Mitch McConnell to see if they can reach a bipartisan agreement, aides said Wednesday. It could delay the fight until the week of Jan. 22.

Supporters of the 51-vote route — which they call the “constitutional option” — say the Senate is in serious need of reform. The body, they argue, has become completely unworkable, constantly bogged down by filibusters. They want a series of rule changes to limit the power of the filibuster, including mandating that the non-stop talking sessions actually be carried out, rather than triggering one simply with a threat.

But there’s fear among some Democrats that changing the rules by 51 votes would forever alter the Senate as a body designed to protect minority party’s rights. Future majorities could cite the move to change whatever rules they want by 51 votes, a move critics fear would make the Senate too much like the House, where the majority can rule with an iron fist.

Reid, an institutionalist at heart, appears to be treading carefully. While he has threatened repeatedly to change the filibuster, including via the 51-vote option, he also knows whatever steps he takes could haunt Democrats in the future should they return to the minority.

Reid has been discussing the matter with McConnell, but those talks have been sidetracked as the two men engaged in furious horsetrading to avert the fiscal cliff. McConnell has warned Reid not to take the 51-vote route, saying it would further poison relations and set off a “bomb” in the Senate.

Both men have demands. McConnell wants GOP senators to be able to offer amendments when legislation comes to the floor; Reid wants to ensure he can bring legislation directly to the floor without Republicans forcing him to jump through procedural hoops and break filibusters.

No matter what they decide, senators would still be able to filibuster in any number of circumstances, a stalling tactic that requires 60 votes to break. Democrats will occupy 55 seats in the next Senate.

It’s become rather clear over the past several weeks that Reid would rather resolve the filibuster issue via some kind of agreement with McConnell, if possible, that invoke the so-called “nuclear option” and thus set a precedent that would make the relationship between the parties in the Senate even worse than it already is. This isn’t thrilling people on the left, of course, but, as happened two years ago, it appears that the efforts to go to war against the filibuster may have been for naught.