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Senate Rules Changes to Get Votes, Without Hope of Passage

Elements of the failed Senate rules reform effort will get a vote as soon as tomorrow, including the “talking filibuster” proposal. Backers concede that they don’t even have 50 votes for passage, let alone the 67 that would likely be needed to pass any rule change.

This would be the way in which the fairly useless substitute on rules changes will get passed into law. They would all need 67 votes, or possibly 60 if they were conceived as a standing order and not a change to Senate rules. Votes on the “talking filibuster” and other elements of Harkin-Merkley-Udall not incorporated in the substitute would get votes of their own, which would be an opportunity to gauge overall support in the Democratic caucus on the record.

Ultimately, the reformers were stabbed in the back by putative allies of their coalition.

Udall’s most far-reaching idea is a provision that Democrats could just change the rules in a simple majority vote, despite provisions in the chamber’s standing rules requiring a two-thirds majority to alter the rules. Senior Democrats, such as Reid and Levin, believe that such a unilateral change in the rules would fundamentally alter the chamber and would result in an even more forceful rules change by Republicans whenever they reclaim the majority.

Because of that fear, some major unions and abortion rights groups have mounted a behind-the-scenes effort to scuttle the Udall-Merkley proposal, which has support from other ranks of the liberal coalition such as MoveOn. “We have a longer range perspective on this. . . .We will need the filibuster to protect our core interests,” said one union official, requesting anonymity to talk about the liberal division on the issue.

This is simply absurd. Republicans will not suddenly forget that there are tools, which have precedent regardless of what happened this session, to change the Senate rules. The next time they have control of all branches of government, they will move to make changes. You can pretty much bet the house on this.

On whether or not the reformers could have gone further than this, I don’t think there’s much of a question: of course they could have. They lost the support of leadership, they lost putative allies, and they did not have unanimous consent to bring rules changes to the floor, which they claim was needed to bring forward the Constitutional option. First of all, they had to wait around for an hour to get a Republican to object to their unanimous consent request – they could have asked for UC at that point. If denied, they could have denied the motion to adjourn, and basically come back every day to offer the request and grind the Senate to a halt. The ENTIRE POINT of the rules changes was predicated on the fact that one Senator can bend the Senate to his or her will: if they wanted to be hardasses, they clearly could have done so. Echoing Brian Beutler, writing in the context of a health care repeal bill, which will eventually get a vote in the Senate because they are that determined, “In the Senate it’s basically impossible to deny a determined member a vote on an issue, full stop.” That’s as true for Senate rules as it is for anything.

Now, the pragmatic side kicked in for these reformers, who didn’t have the votes, didn’t have backup support from leadership or outside allies, and were fighting a battle they were destined to lose. They want other items on their agenda to eventually get a fair hearing. They were unwilling to sour the relationship with leadership. OK, fine. That’s their prerogative. But let’s not claim it was somehow impossible to get a vote. Things are always possible. Watch the Senate spring into action to extend the Patriot Act as it nears expiration next week. The Senate works when it wants to work. Rules reform would have, in large part, removed the excuses for why some things work and others don’t. And renewing the precedent with the Constitutional option, that these changes can happen in any Congress, would have been a powerful step. We’re not getting it because decisions have been made at the top, and the rank and file is going along with those decisions.

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David Dayen

David Dayen