The strongest momentum in several decades is mounting in the U.S. Senate to change the filibuster rule on the first day of the next Congress in January.
The general idea has the support of dozens of senators, mostly Democrats, and might have a majority, although it normally requires a two-thirds vote to change a Senate rule.
Both of Minnesota’s senators favor changing the rule. And, perhaps most importantly, Majority Leader Harry Reid favors some kind of change. The key is the specific nature of the change that Reid will support.
The leaders of the filibuster reform movement favor a change that would make the filibuster much less common and harder to use. Reid hasn’t said what level of change he favors, but I fear it might be a relatively small tweak.
It’s reasonable to assume that most Republican senators oppose the changes, although back when Republicans controlled the Senate, the impetus for filibuster reform came from their side. The reason for this is obvious. Unless one party controls at least 60 votes in the Senate, the filibuster enables the minority party to prevent action except on a few small categories of actions, especially budget bills, which are exempted from filibusters.
A few basic facts you probably already know: The Senate filibuster is not in the Constitution and was created by accident in the early 19th century. Filibusters used to require a senator (or several working as a team) to hold the floor continuously to prevent a vote. After World War I, a rule change allowed a two-thirds vote of the Senate to shut down debate and force a final vote. In the 1970s, Minnesota’s Walter Mondale led a move to reduce to 60 the number of votes needed to end debate. (That’s called invoking “cloture.”)
In recent years, senators can simply indicate their intention to filibuster and, unless there are 60 votes for cloture, the Senate will just go on to other business without requiring the filibusterers to hold the floor (like Jimmy Stewart did in the Hollywood classic “Mr. Smith Goes to Washington.”)
In the most recent history, the minority Republicans have made unprecedentedly frequent use of the filibuster, often filibustering measures for which they eventually voted in favor. The strategy was just to slow everything down, to deny the Democrats accomplishments. Especially since the rule was changed so that a filibuster could succeed without continuing to talk on the floor, I have argued that filibuster defenders should stop saying that the filibuster rule is necessary to ensure a full debate. It has little to do with debate. It’s about blocking action.
Two freshmen Democrats, Tom Udall of New Mexico and Jeff Merkley of Oregon, have been leading the charge for filibuster reform, often with Tom Harkin of Iowa, who has been arguing against filibusters for decades. Reid opposed them and, as majority leader, could prevent action on a filibuster rule change. Earlier this year, he changed his tune, saying he had been wrong and he promised that if he came back as majority leader in 2013, he would support filibuster reform, although he didn’t say what change he would support.
At present, the change that Udall, Merkley and Harkin favor would be to go back to the days when senators wanting to prevent a vote had to hold the floor and keep talking. Theoretically (and more than theoretically), an old-fashioned filibuster could still prevent action under that rule. But in today’s situation, with the public demanding compromise and action from Washington, the spectacle of senators wasting whole days of the Senate calendar reading their favorite cookbooks into the record, would be embarrassing and would result in fewer filibusters. At least that’s the idea. In an op-ed last week, Sen.-elect Elizabeth Warren of Massachusetts endorsed the specific idea of the hold-the-floor rule change.
But there are indications that Majority Leader Reid has a smaller change in mind. Under the arcane Senate rules, a vote on a bill has to be preceded by a “motion to proceed.” If the motion to proceed is approved, the Senate can deal with the bill itself. During the recent era of extreme filibusters, Republicans have been filibustering the motion to proceed. They don’t even have to filibuster the bill itself.
Reid has not said what he favors, but I believe he is prepared to go only as far as banning filibusters of a motion to proceed. To me, that would be a small tweak. Since filibusters would still be available on final passage of a bill, I’m not sure that represents much of a change.
The “nuclear/constitutional” option
The last background you need to know (forgive me if you already know all this) is that the Senate requires 67 votes to change a rule. The House considers itself to start each session anew and adopts rules for that session on the first day, with only a majority vote required to adopt them. The Senate, by tradition, considers itself to be in permanent operation, since only one third of its members are new (or newly reelected) every two years. So the Senate has permanent rules and one of those rules requires 67 votes to change a rule.
The chance of 67 votes for a new filibuster rule are remote.
None of this is in the Constitution or anything. The Constitution just says that each House of Congress is in charge of its own rules. So there’s a theory that if you just go by the Constitution, a new session should require a new set of rules. Under that theory the old rule (requiring 67 votes for rule changes) expired at the end of the previous Congress and isn’t in force unless it is readopted.
Presumably, if someone wanted to test this theory, there is a magic moment on the first day of a new session when no rules exist. Someone seeking to exploit this moment would seek a vote on a new filibuster rule and ask the chair and the parliamentarian to indicate how many votes are required. If the parliamentarian said it required 67 votes, the anti-filibusterers could object and force a vote of the full Senate on the ruling. In the absence of any rule to the contrary, a majority vote of the Senate can overrule the parliamentarian. Therefore 51 senators could vote that it takes only 51 senators to adopt a new filibuster rule and the same 51 senators could adopt the rule. In the next Senate, counting two independents who caucus with the Dems, there are 55 Democratic votes.
People who don’t like this strong-arm tactic call it the “nuclear option,” considering it to be declaration of nuclear war on the minority. The implicit (and pretty nearly explicit) threat is that a minority that felt it had been nuked would resort to any and all means necessary to gum up the Senate in retaliation.
People who like the tactic prefer to call it the “constitutional option.”