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Filibuster showdown in the Senate: What’s so terrible about majority rule?

If the rule changes, Mitch McConnell says, Harry Reid will go down as worst Senate leader in history.

Senate Majority Leader Harry Reid states that Senate Republicans have turned "advise and consent" into "deny and obstruct."
REUTERS/Kevin Lamarque

Senate Majority Leader Harry Reid claims to have the votes to change the current filibuster rule, and is threatening to use them. Senate Minority Leader Mitch McConnell says Reid will go down in history as the worst leader ever if he goes through with his threat.

Reid and McConnell each had the other’s position when George W. Bush was president. Back then, Democrats were using the filibuster to stall Bush’s appointments and it was Republicans who were threatening to employ what has come to be called the “nuclear option.”

A rare caucus of the entire Senate is scheduled for this evening (5 p.m. Central time) to see if  a compromise might be reached to to avert the terrible blow that majority rule represents to all that senators hold dear.

The change that Reid has in mind would not allow a simple majority of senators to pass a bill nor to confirm nominees to federal judicial positions.  The ability of 41 senators to permanently delay a vote on any of those matters would remain. But if Reid follows through with his threat and can get 51 of the Senate’s 55 Democrats to back him up, the rules would be changed to allow a simple majority to approve nominees to cabinet and sub-cabinet positions. Reid describes it as allowing a president to have whom he wants on his own “team.” He has in mind several appointments that have been stalled for weeks or months.

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McConnell says if the rule change goes through, it will change the meaning of the constitutional language that requires the Senate to “advise and consent” to appointments, to a rule of “sit down and shut up.”

The current filibuster rule requires 60 votes to invoke “cloture” and end “debate” and force a final up or down vote on pretty much any matter except a budget bill. We are in a period of record-high use of the filibuster to stop bills and block appointments, which is among the trends that contribute to gridlock.

A growing bloc of mostly younger Democrats have become supporters of a filibuster-rule change, of which there are various versions. At the beginning of the current session, Reid flirted with the idea of a substantial rule change but instead worked out with McConnell a couple of minor tweaks in the rule and thus avoided a major showdown.

McConnell says that this compromise came with a promise from Reid that their deal would settle the issue for this session, which makes Reid a promise-breaker if he goes ahead with a bigger change.  Reid replies that Senate Republicans have turned “advise and consent” into “deny and obstruct.” McConnell says that Reid apparently “doesn’t want any debate at all” over nominations.

Pretty much every time an opponent of a filibuster-rule change uses the word “debate” in describing the value of the filibuster, that senator is lying. In fact, as you may know, the filibuster rule, as currently practiced, has almost nothing to do with “debate,” if by “debate” one means a discussion in which senators use facts and arguments to try to persuade one another. In fact, when a senator informs the body that he wants to filibuster a particular bill or nomination, the matter generally disappears from the floor unless the majority thinks it can muster 60 votes to pass the bill.

Another common falsehood about the filibuster is that it was part of the constitutional framework for checks and balances, preservation of minority rights or the Framers desire to use the Senate as a “cooling saucer.” (The “cooling saucer” anecdote and its lack of any relationship to the filibuster is described here.)  The U.S. Constitution doesn’t mention the filibuster. All it does is give the Senate control over its own rules. The Constitution does require a supermajority for a couple of things (ratifying a treaty, convicting a president of an impeachable offense, referring a constitutional amendment to the states) but not to pass a bill nor to confirm an appointment. The filibuster rule simply imposes an extra-constitutional supermajority requirement on almost any bill or nomination if 41 senators are willing to filibuster it.

A radical idea?

One crazy, radical idea that has been floated since the mid-1990s by Sen. Tom Harkin of Iowa would ensure full debate and also allow a bill to eventually pass with a majority vote. It seems extremely reasonable to me (if, in fact, the filibuster really had anything to do with debate) but is considered so radical by some senators that the American experiment in democracy would end if it was ever adopted.

Here’s how the Harkin proposal would work: If a bill came to floor and someone wanted to “debate” it, it would require 60 votes to end the debate for the next two days. If, after two days, there was still a substantial minority that felt it had not yet expressed all of its arguments, it would take 57 votes to force a final vote. Two days later, the cloture number would drop to 54 votes. After two more days of debate, the number would drop to a majority, 51 votes.

Once you adopt this principle, you could certainly fool around with the of days and votes required, but eventually a majority could pass a bill. When senators say (as they often do) that they don’t want to turn the Senate into nothing but a smaller version of the House, one of the main things they have in mind is that in the House, a majority can pass a bill.

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Like Reid and McConnell, the great majority of senators seem to feel differently about the filibuster depending on whether their party is in the majority or the minority. But Harkin first introduced his rule when the Democrats were in the minority. Harkin likes to quote the famous early-20th-century Senate giant Henry Cabot Lodge, who said: “To vote without debating is perilous. But to debate and never vote is imbecile.”

Harkin is retiring next year but a cadre of younger members, all Democrats at present, have taken up the long-term cause of filibuster reform.

Small loophole

Back to this evening’s caucus. The issue will not be thorough Harkin-like filibuster reform but a relatively small new loophole in the filibuster affecting only executive branch appointments. The chances strike me as high that the parties will negotiate a deal to avoid changing the rule. Presumably such a deal would require the Republicans to allow a final vote on some specific list of the nominations they are currently blocking by filibuster.

If such a list does come up for negotiation, Todd Jones, the current U.S. attorney for Minnesota who has been nominated to head the Bureau of Alcohol, Tobacco and Firearms, could be in play. As MinnPost Washington reporter Devin Henry wrote on Friday, Jones has been heading that bureau on an acting basis but his confirmation was met with firm Republican resistance.

If negotiations fail and Reid makes good his threat, he will have to use the absurdly-named “nuclear option.” The current Senate rules say that it takes a two-thirds vote of the Senate to change a rule. This is in the Senate rulebook but (like the filibuster rule) not in the Constitution. A long-running argument suggests that, in the absence of any constitutional language to the contrary, a majority of the Senate can change a rule (including — don’t get dizzy now — the rule that it takes a two-thirds vote to change a rule). If Reid decides to force through his new version of the filibuster rule, he will have to take this path. (There is, by the way, no guarantee that he will get 51 votes for a new filibuster rule. Some Democrats oppose the idea.)

But changing the rules by this means is considered so aggressive that it has been deemed the “nuclear option,” which compares it to a nuclear war declared by the majority on the minority and, as such, would set off total warfare between the parties.