The final deal is the most sweeping reform to Senate rules in more than a decade. That isn’t saying much. Instead of three votes on the motion to proceed on legislation, all of them filibusterable, there will be just one. If each party is allowed to offer amendments to the legislation—a sort of senatorial trust fall—then the legislation can proceed with no filibuster. Before, a cloture vote on a nominee set up 30 hours of debate. That shrinks to eight hours for executive branch nominees and most judges and only two hours for district judges. Democrats still turn shades of red when they think of how Obama’s first appeals court nominee, endorsed by local Republicans, was held up for months because he’d struck the Indiana state legislature’s daily invocation on First Amendment grounds.
But it does not change the filibuster. “We have to understand the Senate isn’t and shouldn’t be like the House,” Reid told Ezra Klein before the meeting. “The only way we’ll get rid of the filibuster is if it continues to be abused.” He proceeded to describe a possible solution, in the future, that also would preserve the filibuster. The implication was that a minor unclogging of the Senate would satisfy most people.
“You can have a lot of nominees move through in succession,” said Illinois Sen. Dick Durbin, the party’s whip, after the caucus meeting. “If you want to filibuster, you’d better show up and sit there, because if you don’t, eventually they’re going to move to a vote.”
“I think there was 51 votes to do more,” said Maryland Sen. Ben Cardin, “but this was a good faith, negotiated change. We’ll see how often the Republicans use the 60-vote threshold. We hope that they’ll show some restraint. We believe that the president’s nominees deserve up-or-down votes, and hopefully some Republicans will agree with us.”
Hopefully. The hold-outs who warned against the “nuclear option” all hoped that Republicans would accept their new peace offering. “It’ll give great momentum to working on a bipartisan basis here in the Senate,” said Michigan Sen. Carl Levin. Democrats, by caving, had prevented a “meltdown.” To do otherwise would have been hypocritical. “One of the major newspapers in our country, and I won’t point out which one, the editorial this time was, ‘Hey, go use the so-called constitutional option.’ ” (Levin was referring to the New York Times.) “Read their editorial when the Republicans threatened to use the nuclear option! Strongly in opposition to the nuclear option. We’ve got to be consistent.”
Democrats like Levin were happy to talk to reporters after the meeting. The crushed-hopes caucus of Merkley and Udall were not. Merkley left the meeting through an exit inaccessible to reporters, with a spokesman saying he’d talk again when the vote came.
The vote did not come quickly. Hours after the meeting, Sen. Tom Harkin held the Senate floor to describe what the Democrats had lost. He’d been trying to reform the filibuster for a decade and a half before Merkley and Udall, and he’d supported their campaign, because surely supermajority votes and fear of “meltdowns” from the opposition weren’t what the founders intended.
“We know the Articles of Confederation were a miserable failure, crippled the government,” said Harkin. “It is the abuse of the filibuster, not the reforms being advocated, that has fundamentally changed the character of this body.”
Harkin was one of only two senators in the chamber. Sitting two rows behind him, arms folded and nodding, was Angus King.