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November 23, 2013 10:19 AM What Will It Mean?

By Martin Longman

The elimination of the filibuster for administrative and judicial nominees (not including those to the Supreme Court) will have short and long-term consequences. One of the easier things to predict is that the filibuster will be eliminated entirely in fairly short order. John Dickerson had a good insight on that likelihood:

As Majority Leader Harry Reid orchestrated the change in the rules governing executive nominations and lower-court appointments, his opponents cried tyranny, though they also promised that when they took power they would go further, applying the new standard to Supreme Court nominations. In other words, tyranny—but we promise we’ll give you more of it.

The filibuster on non-budgetary legislative items may live on a bit longer, but it won’t survive it’s first contact with anything that the majority’s political base is adamant about passing. So, despite the Democrats’ desire to limit the damage to the filibuster to those areas where the abuse was most egregious and inexcusable, the line they drew will not hold.

The next question to ask is how this change in procedure will affect the culture of the Senate. This one requires careful thought. For Dickerson and Jonathan Weisman, it will empower the moderates or centrists. Here’s Dickerson’s take:

Moderate senators will hold more power. Democratic Sens. Mark Pryor and Joe Manchin voted against the rule change. In the future, in a closely divided Senate, they are the kind of senators who will be the key vote to give or deny the majority their nominee.

Here’s Weisman’s:

If Harry Reid or future majority leaders extend the new rules to curb filibusters on legislation, a core group of moderates could emerge with new muscle. The Senate is usually narrowly divided, and it would not take a large coalition in the center to hold partisan legislation hostage.
Already, a group of former governors, led by Senator Joe Manchin III, Democrat of West Virginia, Senator Alexander and Senator Tom Carper, Democrat of Delaware, have begun banding together.

At this point, it would probably be helpful to do a thought experiment. Think back to 2007, when the Democrats had just retaken control of the House of Representatives and the Senate (by a 51-49) margin. They introduced the Employee Free Choice Act, passed it by a large margin in the House, and got every Democrat in the Senate (except Tim Johnson of South Dakota who was recovering from a stroke) to vote for it. The only Republican to support the bill was Arlen Specter of Pennsylvania, who would not remain a Republican much longer.

Because the Republicans filibustered the bill, the 51 votes it got were nine votes shy of what was needed to send it to the president’s desk for his signature. But Bush would have vetoed it anyway, so the bill was actually sixteen votes shy (in the Senate) of what would have been needed to become a law. The vote was essentially a free vote. Since everyone knew that the bill wouldn’t become a law that angered a bunch of rich anti-labor employers, it was easier to vote for it and avoid angering the Democratic Party’s union supporters.

When the bill was introduced again in 2009, circumstances had changed. There was a Democratic president who wouldn’t veto the bill. The Democrats nominally controlled 60 seats, although a delay in seating Sen. Al Franken of Minnesota and severe health issues plaguing Sens. Robert Byrd and Edward Kennedy made it necessary to find Republican votes except a very brief period between September and January that was dedicated to passing the health care reforms.

Nonetheless, unions had a right to expect that those who had supported the bill two years previously would help them again. But Sens. Blanche Lincoln, Ben Nelson, Tom Carper, and Arlen Specter bolted. Suddenly, with the prospect of the bill actually becoming a law, they weren’t going to support a cloture vote on it. They were going to filibuster a bill that they had previously supported.

This is the kind of dynamic that is altered by eliminating the filibuster. Hiding behind cloture votes enables you to support things your base wants but that you think are too politically perilous to support if they might actually become law. Blanche Lincoln (D-Walmart) was pro-union when it didn’t count, and the Waltons were okay with that…wink, wink, nod, nod.

In the new Senate, particularly if the legislative filibuster soon succumbs, there will many fewer of these free votes, and imperiled senators in the middle will need to break with their party more often and more openly, which should provide more opportunities for bipartisan coalitions in the middle to form to cover each other’s asses. Rather than joining together to block legislation, which wasn’t even necessary so long as the Republicans remained united in their opposition, these senators will have to join together to mitigate the damage that could be done to their political careers if legislation actually passed. If sufficient mitigation cannot be achieved, they will have to join together to vote the legislation down.

This, then, will cause party unity to fray near the center. If an Arkansan Democrat can no longer make a pretense of being pro-labor, they must pick up some support elsewhere to make up for what they’ve lost. Or, if a Pennsylvania Republican cannot win without union support, they will have to buck the Chamber of Commerce. You can interpret this as either expanding or restricting centrists’ freedom of action, but they should behave differently.

There will still be free votes, for example, when a presidential veto is anticipated or when the House of Representatives has no intention of passing a version of the bill. But, overall, this change in the rules should encourage a different kind of self-protective behavior that will reinvigorate crossover voting.

Does this mean that centrists will have more influence? Once the culture changes enough that bipartisan coalitions form again in the middle, it will give those coalitions significant positive power. However, as long as the Republicans refuse to work on any legislation, the centrist Democrats will be on their own, able to block things by joining the Republicans and to coerce changes in exchange for their support. The main difference will be that they cannot hide behind Republican opposition to disguise their own. They will still see it as highly desirable to avoid purely partisan votes on contentious issues, and will want to find moderate Republicans to give them some cover, but lacking that they will turn against their own party and serve as the blocking agent.

I don’t see this as necessarily meaning that they will have more power under the new rules. I think they will have to exercise their power in new ways. And there will be more perilous votes and fewer ways to avoid accountability.

These are just some initial thoughts. I’ll have more.

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