Sen. Jeff Merkley acknowledged that one component of the consensus plan on Senate rules reform put together by him, Tom Udall and Tom Harkin would probably get tweaked, and that the biggest concern for skittish Democratic lawmakers was changing the rules at all, lest they be changed on them when Republicans take over. Which is kind of an amazing commentary on the state of the Democratic Party, when you think about it.

The comments came after a conference call yesterday, where Udall, Harkin and Merkley laid out their proposal to change the Senate rules. Next week, the Senate will continue debate on the rules for “several days,” according to Udall, and at some point, there would be an option to cut off debate and proceed to a vote on rule changes. That was when Udall would trigger the Constitutional option, with a series of rulings from the chair, allowing the Senate to change the rules by majority vote at the beginning of the Congressional session, which is allowed under Article I, Section 5 of the Constitution. That hurdle cleared, the Senate would then change their rules and, in the words of Harkin, end the process where “a small minority of the Senate now gets to decide what happens in this country.”

Basically, two questions predominate: will 51 votes be available for those changes, and will those changes look the same as the initial consensus document, despite other proposals out there? First, the 51 votes. Udall would only say that their coalition was “working hard” on getting the necessary votes, and that every returning Democratic Senator already signed a document expressing vague support for changing the rules. On a parallel track, Chuck Schumer is negotiating with Lamar Alexander to arrive at some consensus on changes. But that negotiation only has urgency if 51 votes for moving forward are secure.

At an event yesterday in Portland, I asked Sen. Merkley about recent wavering inside the caucus. He correctly pointed out that the objections from members like Sen. Mark Pryor aren’t really objections with the consensus they’ve arrived at. Pryor doesn’t want to eliminate the filibuster, and the consensus changes wouldn’t – they would simply make them more transparent and harder to keep together. Nobody on the Merkley-Udall-Harkin coalition has yet talked to Pryor to explain the changes in further detail. “I don’t think the challenge is 51 on this,” Merkley said, however. “The challenge for some members is, do they want to open the door to changing the rules, because it could be used unfairly in the future.”

“My argument is, the door is always open,” Merkley continued. “Any majority can use this option to change the rules. And the antidote to unfairness is to do it fairly, and make it work whether in the majority or the minority.”

This is why you’re seeing the parallel track negotiations. Schumer mentioned yesterday that there’s “universal agreement that a bipartisan solution is best,” but I don’t think that’s true, it’s just that a handful of Democrats don’t have the gumption to go it alone and risk – horrors – criticism. The evidence that anyone in the country cares about process is really non-existent, so this should not be a concern. But ever defensive, some in the caucus don’t want to change the rules, because someday, someone might change the rules.

One of the consensus changes that Merkley, Harkin and Udall have put out there is probably going to change. The reduction of post-cloture time on amendments, elimination of the filibuster on the motion to proceed, ending secret holds, and the “talking filibuster” or Mr. Smith option forcing the filibustering group to hold the floor will all stay. The question comes on the provision guaranteeing at least three amendments for the minority. Under the current proposal, those amendments would occur in post-cloture time, and that would mean they would be subject merely to an up-or-down vote. “We’re having a debate over amendments,” Merkley conceded. “Initially, I wrote it that the guaranteed amendments would fall before cloture was invoked. The way the Rules Committee had it was afterwards, and we went with that. But we’re probably going back to pre-cloture, which means they could be subject to filibuster, a talking filibuster, of course.” This doesn’t mean that every amendment would require a 60-vote threshold or a cloture vote; in the financial reform debate, unanimous consent was reached on allowing dozens of amendments with an up or down vote. The provision does not preclude those UC deals on amendments. It only kicks in when there is no consent deal on either side. At that point, both sides would be guaranteed three amendments.

David Dayen

David Dayen