Whatever agenda it was that President Obama planned to describe the evening of Jan. 25 in his State of the Union address—as I write this, the speech has not yet been given—became a lot less important during the hours before the speech as prospects in the Senate for filibuster reform faded away.
Earlier this month it seemed likely the Democrats would institute at least a partial filibuster reform. (See “Return of the Nuclear Option.”) A proposal put forth by Sens. Tom Udall, D.-N.M., Jeff Merkley, D-Ore., and Tom Harkin, D.-Iowa (text, summary, video) would end filibusters on procedural motions and require senators who filibuster the bill itself to halt Senate proceedings by talking continuously on the Senate floor. That’s how filibusters worked in the mythical good old days of Mr. Smith Goes to Washingtonand in the nonmythical bad old days of Senate-thwarted anti-lynching bills. The mere threat of a filibuster could sometimes doom legislation, but to act on that threat, the bill’s opponents had to seize the floor and speechify themselves hoarse. This stopped being necessary in 1975 with the adoption of the “procedural” filibuster, which ended the filibustering senator’s obligation to hold the floor and thereby increased the filibuster’s use to the point where the number of cloture votes rose from 27 in 1975-6 to 50 in 1995-6 and then to 91 in 2009-10.
Udall never had a prayer of getting the 67 votes required to change Senate rules regarding filibusters under the Senate’s Rule 22. But because this is the start of a new Congress, the Democrats were able to use a maneuver called the “nuclear option” when Republicans contemplated it in 2005 and since relabeled the “constitutional option,” which happens to be its original name. Under the nuclear/constitutional option, Democrats could change Rule 22 itself by simple majority vote, on the theory that the old Congress can’t bind the new Congress with its rules. (According to Yale law professor Akhil Reed Amar and former Sen. Gary Hart, D.-Colo., the majority has the power to change rules by majority vote even when it isn’t the start of a new Congress.) All Udall would need was 50 of the 53 Democrats and Democrat-allied independents (Vice-President Joe Biden being available as the 51st vote). Udall’s resolution was more than halfway to 50 votes a mere 24 hours after its Jan. 5 introduction. But on Jan. 22, the Washington Post reported that Senate leaders had turned against it (even though Majority Leader Harry Reid, D.-Nev., who’d opposed filibuster reform in the past, had said as recently as Jan. 6 that he would support filibuster reform). On Jan. 24, the Huffington Post’s Sam Stein quoted an unnamed former Senate aide saying “the votes aren’t there” to use the nuclear/constitutional option. Did the Senate leaders oppose filibuster reform because the votes weren’t there? Or were the votes not there because the Senate leadership lost its nerve and decided to oppose filibuster reform?
On the afternoon of Jan. 25, even as Udall, Merkley, and Harkin were pleading their case on the Senate floor (and seeking, unsuccessfully, unanimous consent to bring their rule changes to the floor; Sen. Lamar Alexander, R.-Tenn., blocked them), Democratic and Republican leaders were reportedly backing away from any rule vote at all, and instead gravitating toward adopting, within a day or two, some sort of handshake agreement in which the GOP minority would promise to be more cooperative—for instance, by ending voluntarily all secret holds on legislation. This solution sounds much more in tune with the plan (championed by Udall’s cousin, Sen. Mark Udall, D.-Colorado) to make Democrats and Republicans play musical chairs during the State of the Union speech. Cosmetic reduction of partisan conflict appears to be displacing substantive effort to make the Senate an institution that operates according to majority rule. You have to wonder whether Democrats, in the hours leading up to their party leader’s State of the Union, had any sincere desire to enact its programs.
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