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Filibuster Reform Definitely Coming, But May Not Be Enough

It definitely looks as though we’re headed toward a shift in the Senate rules, though mainly one that facilitates the scheduling of the Senate calendar rather than actually turns the Senate into a majoritarian institution. An exchange between the two leaders on the Senate floor yesterday previewed the expected rule changes:

On the Senate floor today, Harry Reid offered the clearest confirmation yet that he will move forward with filibuster reform at the start of the new Congress. He confirmed he is proposing to “do away with filibusters on the motion to proceed,” which was already known. He added that under proposed reforms, Senators who want to filibuster will have to “stand up and talk about it.” That means Reid supports the “talking filibuster,” the proposal to force filibustering out into the open — on the theory that this will make it politically more difficult.

I don’t think Reid would announce this if he didn’t have the votes.

Mitch McConnell came right back and described this as dastardly, and vowed to “shut down the Senate” as a result. I’m sorry, was there some tool to obstruct and delay that McConnell WASN’T using in the prior six years that he plans to pull out now? We’ve heard these empty threats from the Republican side all before. Remember how the recess appointments to CFPB and the National Labor Relations Board would mean the end of all Presidential and judicial appointments for all time? Guess what, nominees have been appointed since then.

Just calling the changing of the rules on the first day of the new session a “power grab” is way out of line. The “nuclear option” as threatened by Senate Republicans in 2005-2006 concerned creating a simple majority vote for judicial confirmations as a change to the rules in the middle of a legislative session, where there’s precedent for a 2/3 vote, and a series of parliamentarian maneuvers must be employed to get around them. What Senate Democrats have proposed occurs at the beginning of the session, and merely follows the Constitutional dictate that each legislative chamber be allowed to write their own rules, rather than carry them over from the previous session. So this is not “changing the rules in the middle of the game,” as McConnell protests. It’s simply setting the rules at the very beginning.

That said, I think that these rules will make a difference but not a critical one in the process of the Senate. Ending the filibuster on the motion to proceed saves a lot of unnecessary time waiting for cloture motions to ripen. But the minority can still filibuster the underlying legislation in a final vote. Likewise with ending the filibuster on appointing conferees to conference committees. These measures help Harry Reid manage the Senate, but do not help end the supermajority restrictions. As for the “talking filibuster,” the Mr. Smith Goes to Washington-like tactic that would force the minority to hold the floor to obstruct, that might end the filibusters on routine legislation, but if multiple Senators can exchange holding the floor, it shouldn’t be a real barrier. If you still need 60 votes to pass legislation, you still have a 60-vote Senate, regardless of the procedural niceties that get you there. Anyway, as long as the miniorty holds the floor, the majority cannot move to other business. And there’s always other business.

It’s possible that just the act of changing the rules, which assumes that the rules can be changed again if need be, will serve as a spur to stop the obstruction. But that would be the best anyone could hope for.

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David Dayen

David Dayen