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January 24, 2013 11:54 AM The Filibuster Deal: Very Conventional Reform

By Ed Kilgore

Sam Stein and Ryan Grim of HuffPost report that Harry Reid and Mitch McConnell have reached an agreement to make modest changes in the Senate rules governing filibusters:

The deal would address the filibuster on the motion to proceed, which had regularly prevented the Senate from even considering legislation and was a major frustration for Reid. The new procedure will also make it easier for the majority to appoint conferees once a bill has passed, but leaves in place the minority’s ability to filibuster that motion once — meaning that even after the Senate and House have passed a bill, the minority can still mount a filibuster one more time.
Reid won concessions on judicial nominations as well. Under the old rules, after a filibuster had been beaten, 30 more hours were required to pass before a nominee could finally be confirmed. That delay threatened to tie the chamber in knots. The new rules will only allow two hours after cloture is invoked.

Now how you evaluate this development depends largely on how you view the available alternatives. For one thing, the deal avoided the use of the “constitutional option” whereby Democrats might have imposed new rules via a majority vote. That indicates some bedrock Senate Democratic support for the existing system in all its anti-democratic enormity, as reflected in the words of an unnamed Dem staffer who told Stein and Grim that without the 60-vote threshold in the Senate, “Roe v. Wade might be dead and Social Security would be private accounts,” which is an extremely dubious interpretation of recent history.

But most of the angst we’re going to hear immediately involves the failure to include the “talking filibuster” in the reforms: the partial or total requirement that Senators undertaking a filibuster actually go to the floor to defend their position. That was clearly the chief demand of Sen. Jeff Merkley, generally regarded as the spearhead of the reform effort. But I’ve been at least half-convinced by Jonathan Bernstein that the “talking filibuster” ain’t all it’s cracked up to be, and might simply make filibusters more popular among conservatives happy for the opportunity to go to the floor and download the day’s talking points from Rush Limbaugh or Fox.

In any event, the main short-term effect of the deal will probably be on the nominations front, since GOP control over the House gives them a veto over the enactment of legislation with or without blocking power in the Senate. In the longer run, I doubt any reforms will matter a lot until and unless a Senate majority takes the bull by the horns and reduces the cloture threshold below the current 60 votes via the “constitutional option.” If that is indeed, as its critics call it, the “nuclear option,” today’s deal is very conventional.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Mimikatz on January 24, 2013 12:04 PM:

    The best proposed simple reform was to require the minority to muster 41 votes to block rather than require the majority to muster 60 votes in favor. To bad that is not happening. This is pretty feeble, but it at least will allow more nominations to go through. Obama has to fully staff the federal judiciary as fast as he can if his reforms are going to persist.

  • Russell Sadler on January 24, 2013 12:10 PM:

    This is simply "rules" reform. It is not, by any measure, filibuster reform. I have some experience here. I covered the late Oregon Senator Wayne Morse who was the greatest practitioner of the solo filibuster outside the Old South. Sen. Jeff Merkley of Oregon understood. We'll have to see whether Reid's timid half-steps to reform the rules bring the Republican abuse of the filibuster to heel. I doubt it.

  • sjw on January 24, 2013 12:17 PM:

    Pitiful. Freaking pitiful. Lots of big talk from Reid for months, even as recently as a couple of days ago. Then this. Taking a page from Obama's negotiating style, Reid compromised on his own bottom line position, sold out his supporters, and delivered a nothingburger. I am impressed with McConnell, though, who again shows himself a very shrewd negotiator.

  • c u n d gulag on January 24, 2013 12:17 PM:

    I'm with Mimikatz!

    And the next time Republicans have control of the Senate, does anyone have ANY doubts about the fact that THEY'LL force a "Talking Filibuster," or, 'A 41 Senator Quorum?'

    And that's if they don't decide to completely nuke the Senate rules.

    As I wrote in an earlier post, don't ever be suprised when ratfeckers decide to feck some more rats!
    THAT'S what ratfeckers do!

  • Josef K on January 24, 2013 12:27 PM:

    In the longer run, I doubt any reforms will matter a lot until and unless a Senate majority takes the bull by the horns and reduces the cloture threshold below the current 60 votes via the “constitutional option.”

    I'm of two minds myself.

    On the one hand, at least we're now seeing a degree of movement towards having a functioning legislature.

    On the other, I'm think the Roman tyrant Tiberius was onto something when he was said to remark of the Senators of his day as "men fit only to be slaves". I paraphrase here, but the underlying point remains.

    Perhaps the country and our multitude of issues have simply become too big and complicated for an out-of-touch federal captial to address anymore. I dislike the idea, but it seems the most inescapable conclusion right now.

  • Napoleon on January 24, 2013 12:30 PM:

    The unnamed Dem staffer who told Stein and Grim that without the 60-vote threshold in the Senate, “Roe v. Wade might be dead and Social Security would be private accounts,” is an f----ng idiot.

    The next time the Republicans have unified control the filibuster will be gone. They are a political party who could not care less about rigging an election system in a way that represents a de facto coup in this country. Do you really think they will think twice about overturning it so they can give Wall Street grandma's retirement? Ed, seriously, are those Dem staffers on Capital Hill that disconnected from reality?

  • Josef K on January 24, 2013 12:36 PM:

    From Napoleon at 12:30 PM:

    Ed, seriously, are those Dem staffers on Capital Hill that disconnected from reality?

    I think its more a disconnect from the consequences of what goes on/comes out of Capitol Hill.

    Like it or not, DC has become a modern Versailles, and is every bit as segregated from the country's trivails as someone living on Mars.

  • DRF on January 24, 2013 12:48 PM:

    I don't get the point about Roe v. Wade, which is a Supreme Court decision that can't be overturned by legislation. Was the aide referring to Supreme Court nominations? He might be right.

    But one has to look past the immediate partisan interests to the future. The reason Democrats are so reluctant to eliminate the filibuster is because they recognize that one day they will be in the minority in the Senate again and will look to the filibuster to protect their key interests.

    Napolean may well be right that the next time the Republicans have the chance, they will pull the plug on the filibuster, but historically both parties recognize that the pendulum swings both ways over time.

    One reform that would have been nice to see is the elimination of the filibuster in Presidential nominations. Yes, we could end up with undesirable Supreme Court justices, but in the long run, it's disfunctional to allow the minority to block the President's right to have his nominees confirmed.

  • Karen JG on January 24, 2013 1:01 PM:

    I, too, am with mimikatz. I couldn't care less about the "talking filibuster," but I really REALLY wanted to put the onus on the filibusterers by changing the burden to 41 votes to filibuster vs 60 votes to close debate.

    On the other hand, it's not like I had any real hope that Reid would do *anything* actually effective on the filibuster, so... well, I'm not surprised that my cynicism was justified. ::grump::

  • bdop4 on January 24, 2013 1:23 PM:

    "the “talking filibuster” ain’t all it’s cracked up to be, and might simply make filibusters more popular among conservatives happy for the opportunity to go to the floor and download the day’s talking points from Rush Limbaugh or Fox."

    Not sure that would be a bad thing, considering the self-inflicted damage done by repubs when forced to explain themselves over extended periods.

    "The reason Democrats are so reluctant to eliminate the filibuster is because they recognize that one day they will be in the minority in the Senate again and will look to the filibuster to protect their key interests."

    That rationale is self-fulfilling. Sometimes the best defense is a good offense, as in if your policies are enacted and good things happen, then you probably won't be in the minority.

  • Robert from upstate on January 24, 2013 1:35 PM:

    REID BLEW IT! HE IS WORTHLESS IN THE RED ZONE.

  • Robert from upstate on January 24, 2013 1:40 PM:

    "Fix the Senate Now, a coalition of over 50 progressive and labor organizations that has been tirelessly advocating for an end to the silent filibuster, called the emerging deal a "missed opportunity."

    "While the provisions included in the likely agreement may help with streamlining certain nominations, potentially a significant step forward, the agreement avoids measures that would actually raise the costs of Senate obstruction," the group said in a statement. "Neither the talking filibuster provision nor the shifting the burden provision is expected to be included in the final package. While certain details remain important and unresolved, such as potential conditions attached to the elimination of filibusters on the motion to proceed, we know enough to sum up the agreement as follows: a missed opportunity to provide meaningful filibuster reform, while advancing some decent procedural improvements."

    In its statement, Fix the Senate Now also praised the "tireless advocacy" of Merkley and fellow Sens. Tom Harkin (D-Iowa) and Tom Udall (D-N.M.). The coalition had been pushing for the Senate to adopt Merkley's talking filibuster proposal, and also called on Reid to implement other far-reaching reforms, such as requiring the minority to find 41 votes to maintain a filibuster. If the agreement proceeds as expected, the group said, the Senate "will have missed an opportunity to restore accountability and deliberation to the Senate, while not raising the costs of obstruction."

  • Hmmmmm on January 24, 2013 2:15 PM:

    Apparently, according to article, my senator Merkley was "upbraided by Reid for breaking unspoken Senate rules and naming specific senators in a conference call with Democratic activists last week, according to sources familiar with the exchange. "He's pissed off so many in the caucus," said one Democratic aide piqued at Merkley. "He has been having conference calls with progressive donors and activists trying to get them energized. He's named specific Dem Senators. Many are furious. He was called out on Tuesday in caucus and very well could be again today."

    Yep, he's posting a bunch on Facebook, too, asking people to sign his petition. If you're on FB, you should "like" Jeff Merkley and lend support.

    But oh, waaaaaaaaa... Too frickin' bad that Reid's & others' feelings were hurt. The size of these guys' egos... What about transparency? Remember, one of the things that they are trying to get rid of is "anonymous holds".

  • scott_m on January 24, 2013 2:17 PM:

    I'll add my "what mimikatz said" onto the pile. The talking filibuster requirement has flash appeal, but putting the cloture burden on the filibuster supporters would have been the perfect way to make filibusters as rare as they should be.

  • Josef K on January 24, 2013 2:29 PM:

    Okay, let's go with current indicators and accept we've lost (another) chance at genuine reform here.

    What pressure points will be available when the Senate Republicans start abusing the rules again and bring the Senate to an effective standstill again?

  • Citizen Alan on January 24, 2013 3:01 PM:

    IF it streamlines nominations, I'll be happy. IF. Given the status of the House, no decent legislation will be passed by Congress at all in the next two years, so the most productive thing Obama can do is get 150 or so new federal judges on the bench. If these reforms don't even facilitate that, then this whole thing was a farce and we really would have been better off if Reid had lost to Sharron Angle.

  • Doug on January 24, 2013 5:47 PM:

    Even though I would have preferred the requirement that the filibusterers muster 41 votes to maintain a filibuster, I'll take these steps forward and hope they result in a faster nominations process. Filling ALL the posts that require Presidential nomination and are currently vacant would ALMOST make not including the 41 vote requirement worthwhile.
    I also think that too many Senators equate "behind the scenes" to "collegiality" if what is reported in the HuffPo about Sen. Reid's reactions to Sen. Merckley's "naming names". There IS a difference.
    Finally, frustrating as ome of this is, I can't go along with Citizen Alan's idea that, unless this deal facilitates approving Presidential nominations, Angle would have been preferable to Reid. A phrase with "nose" and "face" comes to mind...

  • Peter C on January 24, 2013 6:11 PM:

    I prefer Reid in the Senate to Angle, BUT we don't need him as the Senate LEADER! He'd lose a battle of wills with a black-lab puppy! We really could have leaders who didn't resemble Colin 'Bomber' Harris!

    http://arago4.tnw.utwente.nl/stonedead/movies/hollywood-bowl/02-colin-bomber-harris.html

    Seniority is nice and all, but WE SHOULDN'T BE SADDLED WITH INEFFECTIVE LEADERS merely because their electoral opposition couldn't out-think a rock. Our party needs some mechanism for picking better leaders!

  • Hyde on January 24, 2013 7:10 PM:

    This post and the one directly beneath it (regarding current GOP plans to game the electoral college in blue states with Republican governors and legislatures) say everything you need to know about the two parties and their views toward the exercising of power.

    Democrats: wimps unto eternity.