Why Filibuster Reform Always Fails, and Why This Time It Might Not

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July 15 2013 5:40 PM

Filibuster Reform Might Actually Happen

It always fails at the last minute. But here’s why the latest Democratic effort could succeed.

U.S. Senate Majority Leader Harry Reid takes part in a panel discussion titled "The Awesome Responsibility of Leadership" at the Milken Institute Global Conference in Beverly Hills, California April 29, 2013.
Senate Majority Leader Harry Reid is determined not to be undone by gangs this time.

Photo by Gus Ruelas//Reuters

Anyone who’s been living in Washington for a while assumes he or she knows how the periodic fight over the filibuster ends. The majority party issues a threat of a nuclear option. The minority party threatens to respond by “blowing up the Senate.” (Notice a theme to these metaphors?) Then, like the wisecracking partner who was left for dead in the second act of the movie, a senator unexpectedly rides in and announces a deal that ends the crisis—while leaving the filibuster exactly the same.

David Weigel David Weigel

David Weigel is a reporter for Bloomberg Politics

The inevitability of the failure of reform is probably why Majority Leader Harry Reid has spent the past 72 hours trying to convince everyone that the filibuster will really, truly be changed when the Senate considers it Tuesday. Reid and other Democrats are pushing for a rule change that would bar the filibuster for most presidential nominees, though leave it intact for legislation and judicial nominations. On Monday morning Reid arrived at the small 10th-floor event space of the Center for American Progress to give a speech about the need to change Senate rules, and to snarl at reporters who doubted he’d really do that.

Questioners took their turns, attempting to get Reid to float a compromise or to at least admit that he used to defend the filibuster. He once called it “part of the fabric of this institution,” and “an integral part of our country’s 217 years of history,” and now he was saying that “the Founding Fathers wanted an up-or-down vote, and that's basically what we've been crying for years.” ABC News’ Jeff Zeleny politely asked him to explain the hypocrisy.

“What it is, is that you don’t understand the right question,” said Reid. “I wasn’t talking about changing the rules for nominees. I was talking about changing the rules for judges.”

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That distinction can get lost, but it’s important, and it explains why Democrats are seemingly so ready to change the rules. The great filibuster standoff of 2005, the last one to occur with Republicans in control of the Senate, was sparked by years of failed cloture votes on George W. Bush’s judicial nominees. The stakes of judicial battles are obviously high, because the winners get to don dark robes for the rest of their lives. John Roberts was nominated for a slot on the D.C. Circuit in 2001. He finally got confirmed in 2003. Two years later he was the chief justice of the Supreme Court, and he’ll be alternately vexing or surprising liberals for a few more decades.

Reid, for now, is only concerned with making it easier to confirm non-lifetime appointees to the executive branch. He counts seven jobs in limbo, including the top roles at the EPA, Department of Labor, and (somewhat prematurely) the Department of Homeland Security. The four stuck jobs that Democrats care about the most are the directorship of the Consumer Financial Protection Bureau and three Democratic seats on the National Labor Relations Board.

It’s the NLRB holdup that’s giving Democrats their new urgency, and Reid his new pique. Since the start of the Obama administration, Republicans have prevented votes on Obama’s Democratic nominees for the board, even as he’s offering to keep the traditional two minority-party nominees for balance. Obama responded by recess-appointing the board members. In January the D.C. Circuit ruled that Obama’s appointees were invalid, as the House of Representatives hadn’t consented to the recess. (Since early 2011 John Boehner has kept the House in pro forma sessions instead of recess, in order to create exactly this kind of impediment for the White House.)

In the past plenty of liberal groups have fretted about filibustered bills and nominees. None of them has had the personal investment that the labor movement now has in a Democratic-majority NLRB. The court decision that invalidated the current board has been used by a series of employers to ignore the NLRB’s decisions. And when the terms of these current members finally end next month, the machine shudders to a halt. That’s not acceptable to labor, which already watched a filibuster grind away its top Obama-era priority, the Employee Free Choice Act. When Reid pondered filibuster reform in January before settling for the usual do-nothing deal, labor didn’t even get a single NLRB board member confirmed as part of the compromise.

“What is Barack Obama supposed to do?” Reid sputtered at CAP. “The NLRB goes out of business on Aug. 1. It’s gone, it’s over with. And they’re using—oh, I’ve heard it, oh, you’re doing this illegally. It’s only happened because of them!”

That’s the message labor wants to hear from Reid. One of the most frequent head-nodders at the CAP speech, a labor strategist, told me that he’d “never seen Reid angrier about this” and clarified that the unions would prefer a “nuclear” solution to another deal.

Labor doesn’t really fear the fallout, either. Would Republicans eventually get revenge in 2015 or 2017 by ending the 60-vote threshold on any legislation? Big deal. Had Republicans won control of the Senate in 2012, McConnell was ready to repeal the Affordable Care Act through the reconciliation process, with 51 votes.

Would Republicans “blow up the Senate” if the rules were changed, forcing extended debate and verbatim daily readings of the record? Democrats and labor strategists are in a cynical mood about that. They expect Republicans to be blamed for any obstruction, because, well, have you seen their poll numbers? “Any poll that you look at indicates that [the Senate is] unpopular for two reasons,” said Reid. “One: gridlock. Two: not getting things done.”

A few hours after he wrapped up at CAP, Reid would head to the Old Senate Chamber for a bipartisan meeting about the nominee problem. At CAP he sounded superficially excited about this meeting. But he bristled when a reporter asked whether talks could stop him from holding the vote.

“Talks on what?” said Reid. “Talks on what? Talks on what? If they have a proposal, bring it to me, but otherwise we’re going to have a vote tomorrow. If they have a proposal, bring it to me.” And asked whether some gang of senators could emerge to stop him, as happened in 2005 and this year, Reid shrugged.

“There’ve been gangs forming for a while,” he said. “We’re where we are. My caucus supports where we are. I’m not concerned about gangs. That’s a passé thing.”