Senate filibuster reform yields to stupid bipartisan pantomime.

Who's winning, who's losing, and why.
Jan. 25 2011 6:10 PM

Comity Tonight

Senate filibuster reform yields to stupid bipartisan pantomime.

DVD of "Mr. Smith Goes to Washington."

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.

Become a fan of  Slate on Facebook. Follow us on  Twitter.

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.



Smash and Grab

Will competitive Senate contests in Kansas and South Dakota lead to more late-breaking races in future elections?

Stop Panicking. America Is Now in Very Good Shape to Respond to the Ebola Crisis.

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

The GOP Won’t Win Any Black Votes With Its New “Willie Horton” Ad

Sleater-Kinney Was Once America’s Best Rock Band

Can it be again?


Forget Oculus Rift

This $25 cardboard box turns your phone into an incredibly fun virtual reality experience.

One of Putin’s Favorite Oligarchs Wants to Start an Orthodox Christian Fox News

These Companies in Japan Are More Than 1,000 Years Old

Trending News Channel
Oct. 20 2014 6:17 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Oct. 20 2014 8:14 PM You Should Be Optimistic About Ebola Don’t panic. Here are all the signs that the U.S. is containing the disease.
Oct. 20 2014 7:23 PM Chipotle’s Magical Burrito Empire Keeps Growing, Might Be Slowing
Oct. 20 2014 3:16 PM The Catholic Church Is Changing, and Celibate Gays Are Leading the Way
  Double X
The XX Factor
Oct. 20 2014 6:17 PM I Am 25. I Don't Work at Facebook. My Doctors Want Me to Freeze My Eggs.
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
Brow Beat
Oct. 20 2014 9:13 PM The Smart, Talented, and Utterly Hilarious Leslie Jones Is SNL’s Newest Cast Member
Oct. 21 2014 8:38 AM An Implanted Wearable Gadget Isn’t as Crazy as You’d Think Products like New Deal Design’s UnderSkin may be the future.
  Health & Science
Bad Astronomy
Oct. 21 2014 7:00 AM Watch the Moon Eat the Sun: The Partial Solar Eclipse on Thursday, Oct. 23
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.