Two years ago after senate Republicans used filibusters a record-breaking number of times, Senate Majority Leader Harry Reid made a public push for reforming the chamber's rules, particularly the filibuster. Much to the plea of Democrats concerned with losing control of the senate in 2012, he ultimately accepted a gentleman’s agreement with Minority Leader Mitch McConnell that filibusters would be used more scarcely as they had been in the past. But Republicans have largely reneged on their side of the deal. Now, Reid is once again pushing for reforms, and it looks like he’s not willing to budge this time.
The senate must vote on the procedural rules in the next day or two, and it’s difficult to know exactly how this is going to play out. Traditionally, rules have garnered two-thirds of senate votes at the beginning of each session, but with Republicans resistant to changing the rules as they stand, Reid may not be able to muster the two-thirds.
That’s not a problem. In theory, anyways. In what Republicans and some Democrats are calling the “nuclear option,” Reid is arguing that constitutionally, he only needs a simple majority of the upper chamber — not two-thirds to establish the new rules reform package created by senators Jeff Merkley (D-Ore.), Tom Udall (D-N.M.), and Tom Harkin (D-Iowa). With Democrats holding 55 Senate seats, this should be doable.
Because the constitution doesn’t explicitly discuss this issue at all, the simple majority vote would likely hold up to a legal challenge should it come to that. Still, many on both sides of the aisle are raising concerns of what kind of precedent this could set. Democrats may have the majority now, and at least some of the rule changes are likely to result in a more functioning body, but if all it takes is a simple majority to establish rules, future majorities of Democrats and Republicans alike may be tempted to create less altruistic rules — and who would stop them?
So what’s in the reform package?
— Elimination of filibuster on motions to proceed, while requiring the minority to obtain 41 votes to block a motion rather than require the majority to obtain 60 votes to continue.
— Expediting of nominations, including the reduction of post-cloture debate time on non-Supreme Court nominations from 30 hours to two hours.
— Elimination of filibuster on motions to establish a conference committee: motions for a conference committee would be reduced to one step and debate on that motion would be reduced to two hours.
It’s important to note that arguably the most important part of the reform package would reinstitute the “talking filibuster.” Unlike the impression that people have about what a filibuster looks like because of movies such as Mr. Smith Goes to Washington, a senator can filibuster a motion under the current rules by placing a hold. That senator would not need to talk continuously on the floor defending his or her point; he or she doesn’t even need to reveal who they are or explain why they are employing the hold. This has been a serious focus of frustration for the Obama administration’s appointments.
But early reports suggest that the talking filibuster option may already be off the table. Some Democrats including Senator Carl Levin (D-Mich.) have supported the changes to filibustering motions to proceed, but are reluctant to support the talking filibuster. Reid may not have the votes for the talking filibuster, but he arguably has enough leverage to force the Republicans to consider the other reforms — hopefully enough so that rules will be agreed upon with more than two-thirds of the vote.