Strange dishonesty of filibuster reform and the ‘longest day’

Today, the first day of a new session of Congress, was supposed to be the day that the Senate would consider changing the filibuster rule. But it won’t be.

The filibuster, which allows 41 members of the Senate to block action on a bill or nomination, has been used far more frequently over recent years and has become one of the leading symbols and causes of congressional dysfunction. A group of reformers has a proposed rules change that, while it would still allow 41 senators to block action, would make it harder. Two of the keys to the reformers’ package would be to:

• Limit the filibuster opportunity to one occasion in the life of a bill, rather than current practice of allowing a separate filibuster opportunity at each procedural step.

• Require the filibusterers to actually hold the floor and keep talking, which used to be the way filibusters worked before the Senate adopted a new practice, sometimes called the “silent filibuster,” in which the filibusterers can simply notify the Senate of their intent to filibuster, which causes the Senate to move on to other business unless 60 senators vote to invoke “cloture.”

Normally, a Senate rules change requires a two-thirds majority, which has no chance of occurring on the filibuster matter. For arguable historical reasons, some senators believe that a rules change can be adopted by a majority vote if it occurs on the first day of a new session and if the reformers can get a favorable parliamentary ruling from the chair.

You will hear this first-day tactic described by those who oppose it as the “nuclear option,” because they consider a declaration of “nuclear” war by the majority against the minority. Those who favor the tactic call it the “constitutional option,” because the Constitution allows each house of Congress to make its own rules and says nothing about any supermajorities being required.

But in either case, the Senate majority leader controls the floor action. Majority Leader Harry Reid, who blocked filibuster reform in the past, has said that he now favors it, although he hasn’t specified the package he would support. Until a couple of days ago, Reid seemed prepared to force a vote on some kind of filibuster rule change on Day One, which is today.

But the latest word is that Reid is in talks with some proponents of lesser rules changes and will NOT invoke the “nuclear/constitutional” option today.

As an illustration of how strange and fundamentally dishonest almost everything about the filibuster rule is, CNN reported last night that:

An aide explained Reid will use a technical parliamentary procedure that will keep the first legislative day open indefinitely as talks continue. That way if the talks fail, he would preserve the right to make the change with just 51 votes.