The Senate may finally curb the filibuster. Hallelujah.

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Jan. 6 2011 7:10 PM

Return of the Nuclear Option

The Senate may finally curb the filibuster. Hallelujah.

Tom Udall. Click image to expand.
Tom Udall

It's always a shock when a cause I've shouted myself hoarse about acquires broad acceptance.   It's starting to look as though the Senate will alter its rules to curb use of the filibuster.

The bad news is that the Senate probably won't eliminate the filibuster altogether or even adopt the toughest compromise proposal, long advocated by Sen. Tom Harkin, D-Iowa. Under Harkin's plan, the minority's ability to block legislation would diminish with successive votes. Senate leaders would still need 60 votes initially to impose "cloture"—i.e., to shut off debate. But if Senate leaders lost that vote, they could wait two days and call another vote that would require only 57 votes. If they lost that vote they could wait another two days and call yet another vote that would require only 54 votes, and if they lost that vote they could wait another two days and call a final vote that would require only 51 votes. The Harkin plan defers to the minority's desire for extended deliberation but upholds the principle that ultimately the Senate should conduct most of its business through majority rule. It rocks! But so far it's got only three cosponsors: Sen. Dick Durbin, D-Ill.; Sen. Barbara Mikulski, D-Md.; and Sen. Jeanne Shaheen, D-N.H.

The good news is that Senate Majority Leader Harry Reid, D-Nev., who as recently as 2008 was immovably pro-filibuster, has come around. My guess is that he lost patience. In the two-year session just ended Reid killed a record 69 percent of all filibusters but the total number of cloture votes, which prior to 1995 never reached 50, was 91. The filibuster almost killed health care reform and did manage to kill its most important component, the public option. It also killed the climate-change bill.

The other good news is that the once-reviled "nuclear option," which would change Senate Rule 22 to allow filibuster procedures to be altered by a simple majority vote (rather than the previous 67-vote majority, which effectively prevented any meaningful filibuster reform) has been rebranded the "constitutional option"—its original name, in fact—and thereby acquired the respectability it always deserved. Reid will probably invoke the nuc—ahem, constitutional option when a Senate floor vote on the change occurs on or about Jan. 25, even though he publicly rejected it less than one year ago.

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The principal venue by which filibuster reform became acceptable appears to be a series of Senate Rules Committee hearings chaired by Sen. Chuck Schumer, D-N.Y., starting this past spring. These discussions led to a proposed resolution (text, summary, video) introduced on Jan. 5 by Sen. Tom Udall, D-N.M., Sen. Jeff Merkley, D-Ore., and Harkin. Udall is on fire over this issue, and his resolution already has 26 co-sponsors—"Halfway there in one day," a Udall spokesman boasted. It would eliminate the filibuster on a motion to proceed (as opposed to the bill itself), an annoying obstacle whose removal is long overdue, and it would end the sort of phantom filibusters that became commonplace during the past four decades in which the minority could block legislation without maintaining a presence on the Senate floor. Henceforth, all filibusters would be conducted in the manner Jimmy Stewart made famous in Mr. Smith Goes To Washington (and, less laudably but more typically outside Hollywood's fantasy realm, the way the late segregationist Sen. Strom Thurmond of South Carolina filibustered against the 1957 Civil Rights Act). Filibustering senators would have to talk themselves hoarse. The Udall-Merkley-Harkin proposal would also eliminate secret "holds" on legislation and, in a fair-minded concession to Republicans, eliminate the Senate majority's ability to block amendments through a practice known as "filling the amendment tree." Udall's resolution is a halfway measure, but any opportunity to remove half the plaque from the Senate's clogged arteries is well worth seizing.

A third proposed reform has also been introduced by Mark Udall, D-Colo., Tom's cousin. (Tom is the son of the late Stewart Udall, Secretary of the Interior under President Kennedy; Mark is the son of the late Arizona Rep. Morris Udall, D.-Az., who sought unsuccessfully his party's presidential nomination in 1976 and later wrote a book titled Too Funny To Be President.) Cousin Mark's apparent function is to make Cousin Tom's plan seem bold. Most significantly, Mark does not embrace the nuclear/constitutional option, preferring a more "bipartisan" agreement that could be agreed to by 67 senators. But which 67 senators might those be? So far Mark's got only two cosponsors (Durbin and Shaheen), neither of them Republicans.

The GOP's hypocrisy on the filibuster issue is impressive. In 2005, when the constitutional option was still called the "nuclear option," Senate Majority Whip Mitch McConnell, R.-Ky., liked it just fine. (I egged him on, complaining only that his version applied only to judicial nominees.) Now, however, it "would undermine the Senate's unique role as a moderating influence and put a permanent end to bipartisanship." This from the guy who not three months ago said "The single most important thing we want to achieve is" not reducing unemployment or bringing peace to Afghanistan or even cutting taxes and shrinking government but "for President Obama to be a one-term president." Of course, most Democrats are hypocrites on this issue, too, since they opposed the Senate Republicans' nuclear/constitutional option in 2005. But they got it wrong; the filibuster is an inherently conservative tool because it favors government inaction over government action. Now's their chance to get it right, and it looks as if they're going to take it. Hallelujah.

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

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