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As Democrats Rally for Senate Rules Reform, Will These Changes Matter?

The Senate recessed last night, and won’t come back into session until January 25. It’s good to be a Senator. But before they pick back up on what amounts to the same “legislative day,” they will build support for Tom Udall’s Constitutional option to reform the Senate rules. Outside of Ben Nelson, there really isn’t much wavering yet among the caucus. Already, Udall’s proposal has 16 original co-sponsors, all Democrats, including newcomers Richard Blumenthal and Joe Manchin (!). In addition, Al Franken’s office tells me he’s signed on as a co-sponsor. Frank Lautenberg introduced his own proposal for a “Mr. Smith Goes to Washington”-type of filibuster, and he has the support of Dick Durbin as a co-sponsor. Both Durbin and Chuck Schumer, the point person on rules, spoke on the floor last night and basically endorsed the process. I don’t know that anybody in the entire caucus disagrees with Udall’s statement from yesterday on the Senate floor:

“The Senate is broken. In the Congress that just ended – because of rampant and growing obstruction – not a single appropriations bill was passed. There wasn’t a budget bill. Only one authorization bill was approved – and that was only at the very last minute. More than 400 bills on a variety of important issues were sent over from the House. Not a single one was acted upon. Key judicial nominations and executive appointments continue to languish.

“The American people are fed up with it. They are fed up with us. And I don’t blame them. We need to bring the workings of the Senate out of the shadows and restore its accountability. That begins with addressing our own dysfunction. Specifically, the source of that dysfunction – the Senate rules.

Udall also quoted both Orrin Hatch and John Cornyn, in past writings, agreeing that the Senate can change their rules at the beginning of a session by majority vote. I’m seeing most articles on this issue accept that as a plain fact. That’s quite a victory.

It remains to be seen whether Democrats will negotiate from a position of strength on this, or not. But they certainly have the opportunity after a solid day of debate with virtually the entire ideological spectrum of the caucus weighing in on the need for change.

Now, that begs the question of whether these particular rules, the ones in the Udall/Merkley/Harkin agreement, are likely to actually change how the Senate does business. A lot of Senate observers basically say no.

Secret holds? If holds are a problem (and in general I’m only really concerned about them on nominations), then the problem is the hold itself, not secrecy. Making holds public won’t change anything. There’s also a strange, from my point of view, emphasis on forcing “live” filibusters, which (without further rules changes) will also change nothing. Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants. Assuming otherwise, as these reforms seem to do, is a real misunderstanding.

Two provisions, elimination of a filibuster on the motion to proceed for bills and a dramatic reduction of post-cloture time on nominations, aim to reduce the ability of smaller minorities to use the scarcity of floor time to defeat things they don’t have the numbers to stop. On the margins, this might make some difference, but it’s not really clear whether that’s the case or not. Regardless, they make no difference at all for those bills and nominations that can’t reach 60 votes.

Bernstein adds that reformers “may just be settling for the long game.” That’s pretty clear. Udall’s entire focus over the last two years has been to set the precedent that the Senate can change their rules at the beginning of the session. He’s basically gotten there. And if you can change the rules once, you can change them twice, and three times. This sets up for this Congress to act with some trepidation before engaging in endless obstruction.

Don’t believe me? It’s actually already working. To wit:

Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) “agreed to set up a bipartisan working group to look at improving the Senate’s pace of confirming nominations,” Roll Call reports […]

In the colloquy, Reid said the working group could consider ways to improve and streamline the process and perhaps eliminate the need for Senate confirmation for some lower-level nominees.

McConnell noted that the Senate now has to confirm thousands of nominations instead of the hundreds that were confirmed during President John F. Kennedy’s term in office.

Why in Jebus’ name would Mitch McConnell agree to potentially set aside hundreds of confirmations of low-level Presidential nominees? Is it at all possible that it’s just a coincidence he made this announcement the same day that Senate rules reform got debated on the floor of the Senate? I really don’t think so.

And I think the rules themselves are actually being soft-sold by most people. The Senate calendar is the biggest issue at play, the linchpin for obstruction being a finite amount of floor time. Removing the filibuster on the motion to proceed and allowing a set two-hour period of debate eliminates as much as 60 hours of floor time from every single piece of legislation. Reducing post-cloture time on nominations from 30 hours to 2 similarly drastically reduces the amount of time it takes to get nominees confirmed and out the door. The calendar would be exponentially more free for debatable legislation under these rules.

What’s more, anyone who watches the Senate for a living (and I do it so you don’t have to) knows that one of the biggest time-wasters is the endless negotiations about time agreements for amendments. Yes, this reform package gives the minority a set amount of amendments. It also structures the time frame for those amendments. That could bring to an end the back-and-forth time suck haggling over an amendment getting a vote.

As for the “talking filibuster,” this is something I’ve seen bandied about in every comment section of every blog since I was dropped off at the political Internet many years ago. We hear often that Democrats aren’t responsive to their base. This is, from my vantage point, exactly what the base wants. “Make them filibuster” is something of a mantra. The filibuster would move from a staple of the Senate to a tactical weapon, with each side having to decide whether it’s worth it to continue.

I’d prefer to have a majority-rule body like practically every other legislature the word over. Heck, I’d prefer a Senate that was more ceremonial like the House of Lords. But with Republicans already lowering their sights on obstruction after the threat has been made, with the ability to streamline non-controversial legislation and nominations for quick passage inherent in the rule changes, and with the precedent set for rule changes every two years if dysfunction persists, I think success here will have a cumulative effect.

UPDATE: I think the headline here doesn’t match the story. Ben Nelson wouldn’t even commit to voting against the Udall/Merkley/Harkin proposal. He also said “What we need to do is get rid of the dilatory tactics that slow down, stop and create gridlock in the Senate,” which describes most of what the proposal does. David Waldman has more on amendments.

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David Dayen

David Dayen