Jan. 22 was supposed to be Filibuster Reform Day. At the start of this year, the Senate opened for business, but did not adjourn, a gimmick that allows its “first day” to extend indefinitely. Senate Democrats opted for this procedural sleight of hand because only on this so-called first day could a simple, 51-seat majority of the Senate pass a rules package. There were probably 51 Democrats ready to pass filibuster reform. “Reform of the rules will be front and center when we return,” said New Mexico Sen. Tom Udall back on Jan. 3. Writing at the same time, Ezra Klein said, “Reformers tell me that the expected deadline is Jan. 22, or thereabouts.”
Key word: thereabouts. Democrats now say that the reform vote will happen “soon”—probably Jan. 23, but let’s not get carried away. The sticking point is a possible compromise, the brainchild of a “Group of Eight” led by Sen. Carl Levin and Sen. John McCain that could attract Republican votes. It wouldn’t give the Democrats everything they want—it wouldn’t force senators to filibuster by actually standing up and talking until their voices or bladders give out. But it would keep Democrats from using the “nuclear option” of a majority vote, and Republicans have sworn holy, unending warfare if the Democrats go there. (Hence the “nuclear” branding. Reformers call this the “constitutional” option, which is not wrong, but opponents say it’ll bring on mutually assured destruction.)
It’s the World’s Greatest Deliberative Body engaging in pretty simple game theory. If Harry Reid and Mitch McConnell can’t agree on a reform package, Reid would “move forward” and go nuclear. The diehards, led by Udall and Oregon Sen. Jeff Merkley, keep claiming they have the 51 votes for reform. The most compromise-friendly members of the conference are with them.
“I am deeply frustrated with our inability to legislate,” said Delaware Sen. Chris Coons. “Deeply. And I’m willing to take unprecedented action because of that.”
“That’s all I want to do, just talk,” said Montana Sen. Jon Tester. “We do that, and I’m happy as a clam.”
But the anti-nuclear holdouts can’t say they have the votes for a compromise. They’re hoping that a Reid-McConnell deal can emerge, and that everyone will buy it and the Senate will become a less horrible place to work.
“I think they’re making progress,” said McCain. “I’m very hopeful. The model that they’re using is our recommendations, and I hope it works.”
And they’re hopeful because of the overlap between Merkley-Udall and Levin-McCain. Both plans limit the time needed to debate nominees after a filibuster is broken, from 30 hours to two hours. (The Levin-McCain plan keeps the marathon time for important nominees.) Both plans would end the filibuster on the motion to proceed. Reid, reportedly, has taken those ideas and added one that basically flips the responsibility for filibustering. Right now, to reach cloture, the majority needs to put together 60 votes. The new idea (credited to Sen. Al Franken) would put the onus on the minority to find 41 “no” votes. That, swear reformers, would prevent the current practice of delaying bills or nominees for months, holding the vote, and finding that there were only a dozen or so senators who actually cared enough to block it.
There are only four or five Democratic senators still seen as holdouts, believers in either the old filibuster system or skeptics of the nuclear option. They don’t hate this 41-vote idea. “I like that,” said Levin on Tuesday, as he walked into the meeting where Democrats would talk over their options. “I’d love to be able to do that.” As he left the room, Arkansas Sen. Mark Pryor wondered “how much traction” the 41-vote idea has, but said he’d “look at it”—an open-ended musing he hasn’t made about any other reform idea.
The problem, ironically enough, is the vote count. The McCain-Levin “Group of Eight” is now a Group of Seven. The eighth member, Arizona’s Jon Kyl, retired in 2012. His successor, Sen. Jeff Flake, has told me he’s skeptical of most filibuster reform ideas. When I asked Levin whether the compromise-ready Republicans could bring along enough votes to pass this reform, he demurred.
“I assume that they’re making the same arguments we are,” he said. “The question is: What do the leaders do? It’s really in their hands. Our recommendation was really to the leaders. We haven’t been on the floor, you’ll notice, making our arguments. We circulated them, they’re public, we had a press conference, and we’re telling them we hope you can take this, we think there’s value in it, and you can use this as a basis for a bipartisan compromise.”
But the only reason Republicans are talking compromise is that they fear a Democratic “nuclear option.” Merkley and his allies have counted votes, hard votes, and the compromisers haven’t.
“I think switching from 60 to 41 would be very valuable,” said Merkley after the Democrats’ strategy luncheon. But there remained “two paths” forward, and one of them was his plan. “That’s kind of the gold standard. Sometimes you have to settle for the silver standard or the bronze standard, but I still advocate for the gold standard.”
Merkley had used the Democrats’ lunch meeting to advocate it. “I started with what the president said yesterday,” he said. “If we’re going to do our part, as the government, with the issues lying before us, we cannot start with that kind of paralysis.”