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The Complete Failure of Senate Rules Reform

The most consequential action in Washington happened just a bit before the State of the Union last night. On the Senate floor, Jeff Merkley, Tom Udall and Tom Harkin talked about their project to reform Senate rules. And talked. And talked a little more. They talked more than they expected, in fact, because they were waiting for a Republican to come to the floor to object to their proposal to debate and reform the Senate rules.

What, you may ask? First of all, why wait, why extend the courtesy? Well, that’s the Senate. But second, isn’t the whole point behind rules reform and the Constitutional option that you don’t need unanimous consent at the beginning of the Congress to reform the rules? Isn’t it the case that Tom Udall merely had to appeal to the chair to change the rules, and if the chair followed precedent, he would get a favorable ruling, and the up-or-down vote would come on a Republican objection to the ruling?

Well, that was the working theory for the past several months. But that’s not the way Udall and his colleagues went, in the end. They didn’t have 50 votes in hand to change the rules, that much is certain. But the real problem that colleagues had was wanting to use the Constitutional option to change the rules at all. They implored Udall and Merkley and Harkin not to force an up-or-down vote, on the theory that Republicans would take the hint when they regained the majority (which Senators clearly think is happening come 2012; nice confidence!) and change the rules themselves. This puts a healthy belief in Republican ability to only follow precedent, but it appears to have won over our intrepid reformers.

There is likely to be some reform of the Senate rules, and we should see an agreement in the next day or two, according to Harry Reid and Lamar Alexander, who has been the Republican point person. But it will happen under regular order with a 67-vote requirement, and it will be almost meaningless. The items under discussion are banning (or maybe just limiting) secret holds, though the holds are the problem, not the secrecy; reducing the amount of nominees that require Senate confirmation by a trivial amount; and possibly ending the ability for a Senator to force a reading of legislation or amendments on the floor, which almost never happens. Then there will be some “gentlemen’s agreement,” unwritten, to somehow limit use of the filibuster and filling of the amendment tree.

The entire point of Tom Udall’s year-long crusade for rules reform was to put the Senate on the record, that changes can be undertaken at the beginning of Congress by majority vote. Even if the compromise package meant something at all, it would be important to enshrine that precedent as a corrective to the historic obstruction we’ve been seeing. But Udall bowed to internal pressure. He says that he didn’t have the votes, and I certainly believe him on that front. Other aides said that, without getting unanimous consent to proceed to the resolution on rules changes, the trio pushing for reform couldn’t start the Constitutional option. I don’t think that’s entirely true. They could have forced a debate. (There’s a question as to whether or not the rules resolution was the pending business. As I understand it, the last time the Senate met it was.)

UPDATE: A similar response to Sam Stein as came to me. “To be able to invoke the constitutional option, a resolution has to be placed on the Senate calendar and to place something on the calendar you need unanimous consent. Unanimous consent was rejected last night.” Of course, the Democrats involved could have rejected unanimous consent to adjourn the legislative day until they got their resolution onto the floor. There were options, as much as the reformers want to say there weren’t.

The reformers are aware that these are baby steps at best, but did nothing to force the issue and an up-or-down vote, which would have been more valuable than even the changes that we’ll see, at least for posterity.

Today, the Senate will move to some consideration of a resolution honoring the victims and heroes of the Tucson shooting. It will be the second legislative day of the session. The Constitutional option is dead. And obstruction will reign supreme in the United States Senate.

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David Dayen

David Dayen