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Big test of the filibuster rule may be coming in January

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.”

Comments (3)

  1. Submitted by Mike Worcester on 11/21/2012 - 12:14 pm.

    Let The Talking Commence

    Here is a small “tweak” that would be a big reform. If a senator wants to filibuster – let them. In other words, let them talk–and talk and talk and talk. If they really want to stop action on a bill, then let their voice be heard. Read from the Washington DC phone book for all I care. Of course, all this will be carried live on C-SPAN 2 so all the world can enjoy the stupidity. The way the rule is enforced now is too easy. At least if a senator wants to talk a bill to death, they should be made to use their vocal cords to do that.

  2. Submitted by Ed Felien on 11/21/2012 - 12:42 pm.


    My understanding is that the rules of the Senate are established on the first day of business by majority vote (not 67). Here is what I wrote in the November editions of Southside Pride: Congratulations! Now what?
    Forward over the financial cliff?


    Obama’s victory is a victory for women’s rights, for the rights of immigrants to dignity and a path to citizenship, a victory for African-Americans in their continuing struggle against racism and a victory for working people.

    Romney vowed to defund Planned Parenthood, appoint justices to the Supreme Court that would overturn Roe v Wade and, by making abortion illegal, he would have made women’s bodies the property of the state. He would have made immigrants unwelcome in this country. He would have strengthened the hand of racists in this country. And he would have phased out Social Security and Medicare, eliminated Obamacare (that has guaranteed medical coverage for all Americans), cut health and safety standards for workers and driven down wages in the public and private sectors.

    That didn’t happen.

    We’re not moving backwards. But there’s no guarantee that we’ll move forward unless the Democrats put some starch in their backbones and get ready for the fight of their lives. The battle for the future has not been won. That battle has just begun.

    Democrats just added to their majority in the Senate. They now have 53 Democrats and two Independents that will probably vote with them against 45 Republicans. But one senator can filibuster a bill and stop it, and it takes 60 votes to override that filibuster. The Republicans have demonstrated that they will do everything to obstruct progress in the Senate. They have used the filibuster 370 times in Harry Reid’s tenure as majority leader of the Senate. During an even more contentious period Lyndon Johnson, who served as majority leader for the same amount of time as Harry Reid, had to face just one Republican filibuster.

    There is nothing sacred about the filibuster. It is not part of the Constitution. It is a relatively modern invention meant to protect the state’s rights of southern racists. The rules of the Senate are adopted on the first day of the session. The Democrats must adopt rules eliminating the filibuster, and they also must eliminate the rule that allows one Senator to put a hold on a Presidential appointment. If we are to move forward, then we have to smash through these barriers that Mitch McConnell and his Southern racist pals have set in our way.

    The Democrats made some gains in the House but not enough to control it. There are still some races that are too close to call, but it seems the Republicans will have a 40-vote edge. In order to hold his caucus together, John Boehner has had to cater to the crazies. But the Tea Party caucus had only 61 members during the last session, and two of the worst of that lot were defeated: Roscoe Bartlett and Joe Walsh (another Republican expert on women’s health, who said abortion isn’t necessary to protect the life of the mother because women never die from childbirth any more. According to Amnesty International: “During 2004 and 2005, more than 68,000 women nearly died in childbirth in the USA. Each year, 1.7 million women suffer a complication that has an adverse effect on their health.”).

    All the Democrats need is 21 Republicans to join with them in a Congress of National Reconciliation—a bi-partisan Congress that will put the good of the country ahead of partisan wrangling. Up to now, the threat against moderate Republicans has been, “If you don’t cooperate with the Tea Party, then we’ll run against you in the Primary and beat you.” But what has happened when they’ve done that? What happened to Todd Aikin, Richard Mourdock and Christine O’Donnell when those Tea Party darlings won their party’s primary? They went down to defeat when faced with Democratic moderates. If 21 moderate Republicans would caucus with the Democrats, then the Democrats must offer them the speaker’s role and the chairs of all the committees. But more than that, the Democrats should offer them help in their next election: if they stand with the Democrats in trying to move this country forward, then the Democrats must stand with them when the Tea Party reactionaries try to move this country backwards by trying to run over them.

    There is a lot at stake. We need to make our tax laws more fair. The rich must pay their fair share. We need to make sure Social Security and Medicare are solvent, but we cannot cut any of the benefits. And in order to get this country back on the road to prosperity we need to help the people at the bottom of the ladder of opportunity. If we raise the federal minimum wage, that will translate immediately into more goods purchased, more homes built and more prosperity for everyone.
    Right now we are looking over a financial cliff. What would happen if we went over that cliff? If Congress does nothing, then there would be automatic cuts in Defense that would close down unnecessary military bases in Southern states and foreign countries. The Bush tax cuts would expire. That means working people would have a slight increase in their payroll taxes, but it would also mean rich people would begin to pay their fair share. It should be easy to restore the tax cuts for working people in the next Congress.

    So, if John Boehner wants to give the car keys to the crazies, and they’re willing to drive over the cliff, then the rest of us should step back and begin to talk to our moderate Republican friends. This financial cliff could be a driveway where we could work together for a bi-partisan Congress of National Reconciliation.

  3. Submitted by Paul Udstrand on 11/23/2012 - 11:10 am.

    Nuke em.

    We have huge problems and very workable solutions that have been blocked for decades by ideologues who refuse to compromise or even recognize common national objectives. We’ve suffered long enough. Nuke em and move forward, future generations will thank us for it.

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