Four Reasons the Democratic Plan To Reform the Senate Filibuster Might Actually Succeed

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Nov. 28 2012 11:37 PM

Make ’Em Talk

Four reasons why the latest Democratic ploy to change the Senate filibuster might actually work.

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Sen. Mitch McConnell

Photograph by Chip Somodevilla/Getty Images.

Nobody spits out the word efficiency quite like Mitch McConnell. Every morning this week, the Republican leader has stood behind his desk in the Senate and warned of Democratic tyranny. He’s pronounced the “e” word with contempt so thick it practically fogs his glasses.

David Weigel David Weigel

David Weigel is a Slate political reporter. You can reach him at daveweigel@gmail.com, or tweet at him @daveweigel.

“In the name of efficiency,” he said on Monday, “their plan is to use a heavy-handed tactic that would poison party relations even more. In the name of efficiency, they would prevent the very possibility of compromise, and threaten to make the disputes of the past few years look like pillow fights.”

The next day, he characterized Harry Reid’s position as: “We have to make the Senate more efficient, and we have to violate the Senate’s rules to do so, so that he and his colleagues in the majority can implement more easily their vision for America.”

The “heavy-handed” tactic in question is filibuster reform. In 2013, on their third attempt in eight years, senators might actually tweak the filibuster. To understand why Democrats might actually pull this off, you have to understand what “this” is. Democratic aides describe a small number of connected changes, which could be voted through on Jan. 3, the day the new Senate convenes. Only 51 votes are needed to set Senate rules at the start of the year. After that, it would take 67 votes. Democrats will have 53 seats, and two independents who’ve announced they’ll caucus with them.

Currently, the motion to go to conference—to take a bill to the House-Senate committee that can pass it—can be objected. The objection delays the process by a week. Democrats want to end that. The modern filibuster is typically a threat to deny cloture—60 votes—to move ahead on a bill. Some Democrats want to make the senator denying a vote “park his fanny on the floor” (Dick Durbin’s words) and talk—actually filibuster the filibuster.

The Republican minority doesn’t know, or cannot say, how it might block these reforms. So far, it’s been pointing out that the Senate is supposed to be a legislation-shredding slog, and well, heck, Democrats used to defend the filibuster, so what’s their problem?

But there at least four reasons why this particular set of reforms might work.

1. These aren’t particularly new or scary ideas. Americans, raised on Mr. Smith Goes to Washington, would hardly be horrified by a filibuster that actually forced a senator to speak. (Two years ago, after their party had lost the House and six Senate seats, New Mexico Sen. Tom Udall and Oregon Sen. Jeff Merkley, both Democrats, called for a “real filibuster” that would make senators show up and talk.) Nor does it seem ridiculous to ban filibusters on procedural votes.

2. Majority Leader Harry Reid wants reform. He didn’t always. In 2005, as Republicans constantly (and fairly!) remind him, Reid opposed a potential Republican-backed rule change that would have ended the filibuster for judicial nominations. The filibuster, he said, was “a tool that serves the long-term interest of the Senate and the American people and our country.” Cameras were recording that. He helped sandbag Udall and Merkley’s 2010-11 reform campaign. Only in May 2012 did he apologize, saying that “these two young, fine senators said it was time we changed the rules in the Senate, and we didn’t. They were right. The rest of us were wrong.” Reid makes reform possible, and keeps the reformers from getting too aggressive.

3. Everybody’s a hypocrite. McConnell likes to quote Reid’s 2005 filibuster epistles. Democrats like to quote McConnell’s. The Republican leader casts everything he can as an appeal to Constitution and tradition, and in 2005 he pointed out that a change to nomination standard would “not be the first time a minority of senators has upset a Senate tradition or practice.” Democrats hyperventilated then, and Republicans hyperventilate now. They even use the same language. The “nuclear option” is a term that makes a 51-vote rule change sound terrifying. Trent Lott coined the term, Democrats picked it up, and Republicans have resurrected it.

Only 45 members of the new Senate were around in 2005. The grand Democratic defenders of the filibuster tradition, like Robert Byrd, are gone. (McConnell’s Tuesday speech praising the Byrd legacy got little attention.) The new members are not so bound to rules invented by previous Senates. “I don’t see the current rules as … the inevitable product of constitutional command,” said Sen. Mike Lee, a Utah Republican who clerked for Sam Alito before getting to the Senate in 2011. “Nor do I see as incompatible with constitutional demand the rule to govern how debate is brought to a close. There is nothing more directly placed at the discretion of the Senate.” (Though Lee opposes a rule change.)

4. Republicans haven’t figured out a good defense. McConnell’s daily speeches have shared a repeatable, bite-sized theme: Democrats want to “break the rules to change the rules.” In their own speeches and comments to reporters, Republicans such as South Dakota’s John Thune, Wyoming’s John Barrasso, Alabama’s Jeff Sessions are using the same phrase. Like McConnell, they sometimes warn that a post-reform Senate would become ungovernable.

“You know, so much of what we do is courteous around here,” Sessions told me between votes. “So much of what’s done is done by unanimous consent. You don’t have to give consent. If you feel like you’ve been run over, that the Senate is being endangered, a good senator has every right, or duty, even, to use what tools they may have to stop and even reverse that decision.”

Democrats can barely stop themselves from laughing at this. How could the Senate possibly work more slowly than it works now? Why would people blame them for more logjams when they’ve effectively cast Republicans as the hell-no party?

That Democratic confidence, and that Republican agita, is stopping most Republicans from ruling out the possibility of a deal that prevents a 51-vote rule change while tweaking some elements of the filibuster. Republicans want to reform the process of adding poison-pill amendments to a bill so that the minority can’t do it. Sessions mentioned this, while saying that Republicans would “support Mitch McConnell.” Hearing that, you can imagine McConnell dragging this out and agreeing to a compromise that reforms the filibuster in the most minor ways. Anything would be better than outright defeat—and better than efficiency.