Democrats pull back from the nuclear option on filibuster reform. Did they get a bum deal?
Senate Majority Leader Harry Reid speaks on Jan. 23, 2013, in Washington
Photo by Mark Wilson/Getty Images.
Angus King was the reason Democrats thought they could kill the filibuster. Last year, the liberal-minded former governor of Maine ran for the U.S. Senate. He was an independent when he’d run the state, a character who requested Rolling Stones songs at his inaugurals, banging the cowbell when the band played “Honky Tonk Women.” He’d be an independent in Washington. On the trail, though, he sounded ready to join Sen. Harry Reid’s caucus. If Washington was broken, it wasn’t Reid’s fault. It was because Republicans were mangling legislative procedures like the filibuster.
“As I understand it,” he told the Washington Post’s Ed O’Keefe last summer, “all you have to do is have Mitch McConnell call Harry Reid and say, ‘I’ll filibuster,’ and there you go, it needs 60 votes. That’s ridiculous. The Constitution doesn’t say that … my view of the filibuster is either you’ve got to lower the vote edge or make people really filibuster.”
King won easily, replacing a Republican moderate and boosting the Democrats’ majority to 55 seats. Filibuster reformers, led by Oregon Sen. Jeff Merkley and New Mexico Sen. Tom Udall, suddenly had the numbers to outvote a shrunken group of “old bulls” and moderates who weren’t ready to force a majority-rules reform through the Senate. Whenever reporters asked, Merkley would say he had 51 votes for reforms that would force the minority party to actually stay on the floor and filibuster bills and nominees.
Until today. Democrats woke up to a deal crafted by Reid and McConnell based largely on the work of veteran senators who did not want to change the 60-vote threshold for breaking filibusters. At an early afternoon meeting, Reid sold the caucus on the deal and on the hope that a bipartisan compromise was de facto better than a more aggressive package passed with only Democratic votes. When it ended, reporters asked King if the deal was good enough.
“I think it’s real progress,” he said. “My quote would be [from] Mick Jagger. You can’t always get what you want, but if you try sometimes, you just might find you get what you need.”
Let’s go with it: Did the Democrats get what they need? Ever since 2009, when the majority party started struggling to confirm judicial nominees and pass immigration or climate change bills, its newer senators have wanted to turn the filibuster into what voters probably think it is—sweaty, tired hold-outs reading from the phone book, burning with passion to stop bills. In 2011, before the start of the 112th Congress, Merkley and Udall pushed for reform and were shut down by Reid. One year later, on the floor of the Senate, the majority leader apologized to them. “The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused, and abused.”
Liberal pressure groups banded together to help Merkley and Udall. The “Fix the Senate Now” coalition, composed of labor unions and groups like Common Cause, held daily 10 a.m. phone calls to strategize. As recently as this weekend, the coalition’s legislative whips were pestering senators at preinaugural events and reminding them that they had 51 votes if they were willing to break the Republicans. The only reason they were even talking about this was that the Republicans knew Democrats had those votes.
It was during this final push that one activist reached Chuck Schumer. The New York senator broke the news: Reid didn’t actually want to “go nuclear.” He was reluctant. He preferred to push McConnell into a smaller deal. The next few days of wrangling (with a pause for inaugural revelry) were all about the leaders reaching consensus and the membership learning to accept it.
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.
David Weigel is a Slate political reporter. You can reach him at firstname.lastname@example.org, or tweet at him @daveweigel.