Harry Reid To Make Another Attempt At Filibuster Reform?

Harry Reid is supposedly making another run at filibuster reform.


The New York Times is out with yet another report about a purported, limited, challenge to the filibuster by Senate Democrats:

WASHINGTON — In a move that could bring to a head six months of smoldering tensions over a Republican blockade of certain presidential nominees, Senate Democrats are preparing to force confirmation votes on a series of President Obama’s most contentious appointments as early as this week.

If Republicans object, Democrats plan to threaten to use the impasse to change the Senate rules that allow the minority party wide latitude to stymie action.

Through the filibuster and other delaying tactics, Republicans have slowed the confirmation process as the president tries to install the team that will carry him through his second term. But Democrats and their majority leader, Senator Harry Reid of Nevada, now say they have reached the point where they believe that the only way to break the logjam is to escalate the fight.

Senator Jeff Merkley, Democrat of Oregon, one of the most outspoken members of his party in calling for new limits on the filibuster, said, “They’ve essentially said they are going to disable the executive branch if a minority of the Senate disagrees with or dislikes the president the people elect.” He added, “It’s come into a realm where it’s just unacceptable because if the executive branch can’t function, then the nation can’t respond to the big challenges it faces.”

Senator Mitch McConnell of Kentucky, the Republican leader, is so alarmed by the threat of a filibuster rule change that he has gone on the Senate floor nearly every day the chamber is in session for the last month to warn of the consequences.

“Majorities are fleeting, but changes to the rules are not,” Mr. McConnell said recently. “And breaking the rules to change the rules would fundamentally change this Senate.”

Mr. Reid has held off on forcing the issue until now, worried that a fight over the filibuster would disrupt the delicate negotiations over immigration legislation. It is also uncertain whether at least 51 Democrats would go along with a rules revision given how cautiously senators weigh even the slightest change to how their body functions.

But with the Senate now clear of the immigration debate, having passed a comprehensive bill before its July 4 recess, Democratic leaders have said they see no reason to wait any longer.

Their plans represent a shift in strategy. Instead of picking fights over judges nominated by the president, where much of the tension has arisen this year, Democrats are likely to focus only on agency appointees. For example, they would line up a series of votes on nominees to run the Environmental Protection Agency, the Consumer Financial Protection Bureau, the Labor Department and a politically important labor oversight board.

The rule change they would seek is intended to be limited. It would allow senators to continue to filibuster legislation and judges, but not appointments to federal agencies or cabinet posts.

Democrats believe that their argument — that a president has the right to assemble his own team of like-minded cabinet officials and other high-level policy makers — is more persuasive in the court of public opinion. They also believe that this fight could have fewer consequences for them should their political fortunes reverse and they find themselves in the minority trying to block judicial nominees from a Republican White House.

Democrats are still strategizing over how best to proceed, but the nominees they have talked about putting forward first are those for vacant seats on the National Labor Relations Board, the government entity that has become a major source of contention in the fight over confirmations between the White House and Senate Republicans.

The others are also divisive: Richard Cordray as director of the Consumer Financial Protection Bureau, Thomas E. Perez as secretary of labor and Gina McCarthy as director of the E.P.A.

“What’s particularly galling to us is there are certain vacancies that haven’t been filled not because the Republicans have anything against the nominee,” said Senator Charles E. Schumer of New York, the No. 3 Senate Democrat. “But rather because they just dislike the agencies and they don’t want them to function.”

We’ve heard this before, of course. Harry Reid talked about filibuster reform when the 112th Congress convened only to abandon any real efforts to push for it when it became clear that he lacked the votes in his own caucus to pass anything significant. Later on, during the term of that Congress he expressed regret for not more aggressively pushing a filibuster reform package proposed by Oregon Senator Jeff Merkely. However, when the opportunity to do so came again at the start of the 113th Congress, he balked again, once again largely because it was clear that he didn’t have sufficient support even within his own caucus for major filibuster reform. Now, he’s pushing for something far more limited.

As I’ve noted before, there is at least some justification for arguing that the filibuster should be treated differently when the subject of Senate action is a nomination rather than legislation. The post in question dealt with judicial nominations, but I think this argument in particular could apply equally to nominations to Executive Branch departments. In that particular case we’re talking about members of the President’s own branch of government that are intended to assist him in carrying out Executive Branch functions. Absent serious questions about the qualifications of the nominees to these departments, the argument goes, the President should be entitled to the nominees and advisers that he prefers.

That’s the theory at least. The reality, as Greg Sargent pointed out after Frank Lautenberg died, is that it’s unlikely that Reid has the votes:

It’s simple math. Lautenberg’s passing means Dems now only have 54 votes in the Senate. (His temporary Republican replacement can’t be expected to back rules reform.) Aides who are tracking the vote count tell me that Senator Carl Levin (a leading opponent of the “nuke option” when it was ruled out at the beginning of the year, leading to the watered down bipartisan filibuster reform compromise) is all but certain to oppose any rules change by simple majority. Senators Patrick Leahy and Mark Pryor remain question marks. And Senator Jack Reed is a Maybe.

If Dems lose those four votes, that would bring them down to 50. And, aides note, that would mean Biden’s tie-breaking vote would be required to get back up to the 51 required for a simple Senate majority. That’s an awfully thin margin for error.


the mere fact that Biden’s potential role as tie-breaker is being discussed underscores just how precarious the push for a change in the rules really is. And this makes things very tricky for Dems right now. They need to escalate the threat level in order to force Senate Republicans to drop their unprecedented opposition to Obama’s nominations. Currently they are expected to filibuster Obama’s pick as Labor Secretary and his choices to head the Consumer Financial Protection Bureau and the Environmental Protection Agency, and they are threatening to oppose his three nominations for the D.C. Circuit Court of Appeals. All of these are key to Obama’s ability to move his agenda forward. But the numbers are such that we simply can’t be sure whether Dems can make good on the threat to change the rules by hitting the nuke button. This could embolden Republican obstructionism further.

On the other hand, Democrats really may be able to muster that 51 votes, particularly since Biden is presumably available as a tie-breaker. And if Republicans do conclude Reid can’t get the votes and call his bluff by continuing with their current levels of obstructionism, Dems will have no choice but to try to change the rules — an effort thatcould sill succeed.

So, the question is whether Reid is going to pull the trigger here. He’s had two other opportunities and he’s backed away because he didn’t have the votes. Will things be different this time?

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. stonetools says:

    I fervently hope he does the pull the trigger this time. The other “reforms” weren’t reforms at all, and frankly people laughed at Harry Reid for touting these as reforms.
    I think the older Democrats have slowly and reluctantly come to understand that the old days of Senate comity are dead and gone forever, and their hopes that McConnell and Cruz would be “gentlemen” and would not use their powers to obstruct to the utmost are illusory.
    I think that we will see action this time.

  2. al-Ameda says:

    I think Democrats need to think twice about this. Because if in the future the GOP takes the Senate, and perhaps the White House, then Democrats will be in a position to treat Republicans in-kind (not that I’m recommending incessant payback and obstruction of Republican nominees, appointments and legislation.)

  3. Bob Beller says:

    Democrats opposed filibuster reform when they were in the minority last decade, claiming the GOP just wanted to be able to ram through whom ever they wished, and Harry Reid called the idea “illegal” in 2005. Suddenly it’s good policy.

  4. bill says:

    hopefully someone will filibuster it.

  5. superdestroyer says:


    I do not think the Democrats have to worry about the Republicans in the future. The day that comprehensive immigration reform passes is the day that the Republicans become irrelevant. The Democrats have decide that electing a new population is their best path for the future and the Democrats know that the will be no come back for the Republicans.

    The filibuster will be an issue until the Democrats lock in more than 60 seats in the Senate and then it will become irrelevant. What is amazing is how few wonks, pundits, and political scientist are thinking about what the future will look like when the Democratic Party becomes so dominant.

  6. Caj says:

    Oh for Gods sake Harry! You should have done that months ago! Dithering about while Rome burns. Democrats are their own worst enemy at times and I could shake them until they rattle.
    Can’t worry about what will happen down the road, things need to get done now. It seems like they are scared to offend anyone! Republicans have no problem offending anyone, so to hell with them and get things done for the good of the country!

  7. Tillman says:

    It doesn’t matter how comfortable reluctant senators have finally become to pulling the filibuster trigger, they already missed their best chance at the start of the session. Even if they had the votes, now would be a horrible time to do it. The precedent set by it would be used and abused by Congresses for the rest of the country’s history, and I’m not certain anyone is comfortable with that.

    Again, the Democrats underestimated the willingness of their colleagues to obstruct any and all government business. “Learn from your mistakes, so you can repeat them precisely.”