Editore"s Note
Tilting at Windmills

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January 27, 2011

THE SENATE REFORM DEAL.... We talked this morning about the fate of reforming Senate rules, and the unwarranted death of the Udall/Harkin/Merkley plan. This afternoon, the negotiations came to a formal end, and an agreement was announced.

Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) announced Thursday that they would preserve the hallowed filibuster rules but "exercise restraint" to ease legislative gridlock.

Moreover, the two men promised never to use an obscure procedure called the "constitutional option" -- which some call the "nuclear option" -- to try to change Senate rules by 51 votes, rather than by a two-thirds majority of 67 senators.

It's a genuine shame that the agreed-to reforms are so minor; the Senate has become deeply dysfunctional in a way that threatens not only the legislative process, but the ability of the government to function. It is, to borrow a phrase, pretty tough to win the future with a Senate that doesn't work.

That said, the agreement announced today, while disappointing, includes worthwhile improvements. Secret holds will be restricted considerably, and roughly a third of the executive branch positions currently subjected to Senate confirmation will no longer need a vote at all. To the delight of the clerks, members also won't be able to delay proceedings by forcing legislation to be read out loud after it's been publicly filed.

Perhaps most notably, there's a "gentlemen's agreement" in place between the caucus leaders -- Dems will "exercise restraint" in blocking amendments, and Republicans will "limit" the filibusters on motions to proceed.

More dramatic changes -- including the "talking" filibuster, and the prospect of eliminating filibusters altogether -- never stood a chance. Too many senators find it too easy to imagine being in the minority, when they may want to utilize some of these obstructionist tools themselves.

And then, of course, there's the "constitutional option," which reformers hoped Dems would use to force sweeping changes by majority rule. Reid and McConnell agreed today not to use this tactic for the rest of this Congress -- or in the next Congress, when either party could be in the majority.

The significance of this is probably obvious -- if Mitch McConnell is the Senate Majority Leader two years from today, he'll be as limited as Dems are now, at least until 2014.

But there's a flip side, too. As Greg Sargent noted, the very possibility of exercising the "constitutional option" opened the door to reforms in the first place, and with this now off the table, at least for a long while, we can forget about additional attempts to improve how the Senate operates. Similarly, Ezra Klein noted that "the minority is not on notice that further abuse of the filibuster (and associated stalling tactics) could lead to more significant reforms."

The agreement includes some modest steps in the right direction, but the reforms could have been, and should have been, far more ambitious, and it's highly unlikely we'll see anyone try again for a very long time.

Steve Benen 4:45 PM Permalink | Trackbacks | Comments (22)

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Again, I think you've got to be a sucker to believe the Republicans will honor a gentlemen's agreement.

Posted by: hells littlest angel on January 27, 2011 at 4:55 PM | PERMALINK

So Dems have been had. Once again. Wimps and idiots. As usual, Dems will "exercise restraint" (read: "cower") -- when have they ever not? -- while the Repubs will run roughshod over them and sneer while they do it.

Hard to tell whether I'm more disgusted or dispirited.

Posted by: exlibra on January 27, 2011 at 4:57 PM | PERMALINK

I have heard congressmen say the members of the other party are opponents but the Senate is a true enemy. Safe to say nothing was accomplished. Mitch McConnell is no gentleman and has never lived up to his word in his life.

Posted by: Ron Byers on January 27, 2011 at 5:00 PM | PERMALINK

What happened to secret holds? Off the table too?

The Senate needs to go. Now! Retire them all to their stately homes, and let them meet once a year to lament whomever may have died, and smoke a cigar in an overstuffed chair. Then send them back again. That's about all they get done anyway.

Posted by: rrk1 on January 27, 2011 at 5:03 PM | PERMALINK

Good analysis. However, I do not understand at all why you think that McConnell is bound by McConnell's word. Do you really think that a promise, or a blood oath, will have any effect on him if he is majority leader ? Has he ever given any reason to think his word is worth anything ? Ever ?

He has certainly said that it is unconstitutional to filibuster motions to approve judicial nominations and he has filibustered such motions. Given his manifest utter contempt for the Constitution, why would anyone imagine that he gives a damn about Mitch McConnell's promises ?

I ask for information.

Posted by: Robert Waldmann on January 27, 2011 at 5:06 PM | PERMALINK

McConnell would use it in a heartbeat if they retook the majority, and I'd curse him and applaud him for it at the same time.

Posted by: doubtful on January 27, 2011 at 5:13 PM | PERMALINK

Robert beat me to it. I was about to post the exact same thing. Mcconnell only cares about the moment. If it suits his purposes, he'll go back on that agreement in a heartbeat. He'll never think twice, and he'll never look back. We just don't know how to play the game...

Posted by: kanopsis on January 27, 2011 at 5:15 PM | PERMALINK

"Too many senators find it too easy to imagine being in the minority, when they may want to utilize some of these obstructionist tools themselves."

Does the mean that Dems intend to abuse the filibuster too? Or does this mean that senate Dems decided that the downside of not being able to filibuster in extreme circumstances is too costly for the benefit of being able to end Republican abuse of the filibuster? Or is it that Reid and senate Dems were yanking our chains and never intended to reform the filibuster in the first place?

Whatever the answers, senate Democrats let us down big time by not reforming the filibuster when they had the chance. The damage they've done with this either stupid or cynical decision is immeasurable.

Posted by: Chris on January 27, 2011 at 5:16 PM | PERMALINK

...and Reid steps off the plane, waving a signed document proclaiming "Peace in our time!"

Posted by: anonymouss on January 27, 2011 at 5:25 PM | PERMALINK

The significance of this is probably obvious -- if Mitch McConnell is the Senate Majority Leader two years from today, he'll be as limited as Dems are now, at least until 2014.

HAHAHAHAHAHAHAHAHAHAHAHAHA!! Oh, that's too funny, the idea that McConnell would honor this agreement if Republicans retake the Senate in 2012.

This is the problem with Democrats in Washington. For some reason, all of us lay observers understand that Republicans will retake the Senate someday, and when they do, they'll do exactly as they please. All of this hand-wringing by Democrats about not wanting to eliminate the filibuster because they still want to use it when they're back in the minority is idiotic.

I guarantee, when Democrats are once again the minority in the Senate, they won't filibuster anything that matters (like, say, a Supreme Court nomination of some right-wing extremist like Roberts or Alito --- yes, I'm looking in your direction Lieberman and the wimpy-ass 'Gang of 12'). And in the unlikely event they do, Republicans will use the 'nuclear option' and ram their legislation/nominee through anyway.

Why is it that Democrats in Washington can't get this?

Posted by: David Bailey on January 27, 2011 at 5:25 PM | PERMALINK
The significance of this is probably obvious -- if Mitch McConnell is the Senate Majority Leader two years from today, he'll be as limited as Dems are now, at least until 2014.

As the "constitutional option" is so named because it is the Constitutional prerogative of the majority of the Senate and cannot be constrained by a gentleman's agreement (or even a vote in the Senate, or even an Act of Congress signed by the President) this is true: the majority in the next Senate will be just as constrained by the agreement not to use as the majority in this Senate is—that is, not at all.

However, it would probably be a mistake to assume that that means that any future majority is as likely to abide by the completely non-binding restriction as the current majority is. Only a group willing to give up something for no gain—political, policy, or otherwise—would do so.

Posted by: cmdicely on January 27, 2011 at 5:38 PM | PERMALINK

If the Republican's abuse the filibuster, then the constitutional/nuclear option would be back on the table in 2013. This of course would only be beneficial if the Democrats retained control, which now is no sure thing. As long as it appears that the Dems will retain control (prospects may improve with Obama at the head of the ticket opposed by a weak Republican - which is a sure thing) they may have leverage. I think Dems on this site and TPM are sometimes too hard on Harry Reid and misunderestimate him.

Posted by: GreenTaxman on January 27, 2011 at 5:40 PM | PERMALINK

Steve, will the Republicans be allowed to obstruct Senate business if they do so while belching, picking their noses or loudly breaking wind, thus becoming ungentlemanly? Or will the job fall to Snowe or Collins?

Posted by: hells littlest angel on January 27, 2011 at 5:41 PM | PERMALINK

This was smoke by Reid to placate the Democratic base. If had and other Senate Democrats had been serious they would have started Jan 5th with a plan in hand for reform of Senate rules. He would have spent the break beating 50 Democrats over the head to get agreement before the Senate opened. He did none of that. This was never serious.

Democratic leaders in the Senate have zero interest in reforming the 'rules'. They care more about the power and prestige of the 'greatest delibrative body on Earth' than they do about getting an agenda passed. That's been obvious for four years now (when Reid became majority leader).

Posted by: thorin-1 on January 27, 2011 at 5:47 PM | PERMALINK

rrk1, @17:03

Secret holds are gone, apparently. Small mercies, I suppose...

Posted by: exlibra on January 27, 2011 at 6:41 PM | PERMALINK

Gentleman's Agreement

Let me add my voice to the many who are critical of the very idea of making "gentlemen's agreements" with thugs.

This is absolutely crushing. I'll give Udall a call tomorrow to thank him at least for trying, and suggest he also think about trying to replace Senator Reid on his next attempt, in 2013...

Posted by: zandru on January 27, 2011 at 7:09 PM | PERMALINK

What a pile of.... Senate Dems are basically fools and deserve what they get. Which is Repubs using the nuclear option the first time they regain control and feel a need to use it (or threaten to use it and watch how fast the Dems fold).

Posted by: gdb on January 27, 2011 at 8:09 PM | PERMALINK

Remind me again why we're glad that Sharon Angle lost?

Posted by: somethingblue on January 27, 2011 at 8:10 PM | PERMALINK

You mean y'all don't think that the Reid-McConnell agreement on ending filibusters, blanket holds, etc., should best be characterized as "Peace in our time"??

Posted by: gdb on January 27, 2011 at 8:14 PM | PERMALINK

The United States Senate - proof that millionaires can indeed be morons.

Posted by: TCinLA on January 28, 2011 at 12:23 AM | PERMALINK

If suddenly given a Faustian bargain of Dem control of the Senate vs eliminating the filibuster--- choose the latter every time. Ummmmm. In 2012, that's likely to be the choice.

Posted by: gdb on January 28, 2011 at 2:32 AM | PERMALINK

Sorry, Steve. I'm usually a big fan of your analysis, but I have to disagree with you here. The only significant takeaway from all this is that the Dems have thrown away any chance at filibuster reform for at least four years. All the rest is window dressing.

Posted by: Geneva Mike on January 28, 2011 at 3:14 AM | PERMALINK



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