Once the lame duck is over, the next big fight will be to reform the rules of the Senate. This campaign is currently known as Senate rules reform, but you may know it as filibuster reform.
Here is an update on where the campaign stands:
Rules reform climaxes on January 5th.
Unlike other congressional fights, which always seem to drag on interminably, the rules reform campaign is a date-certain event. On the first day the Senate is in session during the 112th Congress--which is January 5th, 2011--the Senate either will, or will not, change its rules. That is only three weeks from today, so there isn’t a lot of time left in this campaign.
(There are ways that the fight could continue past January 5th, but such contingencies are unlikely. Further, the events of January 5th will at least let us know whether or not rules reform will happen at all for the 112th Congress.)
The reason rules reform is a date-certain event is based on what Senator Tom Udall (D-NM) calls The Constitutional Option. Udall explains:
The key part of this video is at 1:32, when Udall states:
The Constitution gives us a solution. It says that “each House may determine the rules of its proceedings.” [Article I, Section 5] The House does this at the beginning of each Congress, and the Senate should, too. It’s called The Constitutional Option. At the beginning of the 112th Congress, I will call on the Senate to adopt its rules by a simple majority vote.January 5th is the first day of the 112th Congress, so the campaign climaxes on that day.
This idea has gained significant currency within the Democratic Senate caucus. Since it focuses only on changing Senate rules on the first day of every new Congress, rather than at any point during the Congress, many Democrats view it as distinct from the Republican effort to change Senate rules in 2005. Basic fairness and professional comity that says that it's best to set out your procedural rules of operation at the start of a new session, and then stick to those rules. Back in 2005, Republicans sought to change Senate rules midstream, whenever it suited them.
60-vote requirement isn’t going to be changed
The Senate rule that has generated the most attention by a long, long way is the 60-vote “cloture” requirement to end debate. This rule has driven so much attention that many observers consider lowering the 60-vote threshold to be the entire rules reform fight.
It isn’t. In fact, there is no chance at all that the 60-vote threshold will be lowered in this round of rules reform. The votes to lower the 60-vote requirement simply aren’t there. There probably aren’t even 20 Senators in favor of going to a 51-vote Senate. I discovered this back in August and September, when I took your filibuster reform petition to Senate offices for discussions of rules reform. Most Democratic Senators just don’t want to lower the threshold.
Whether you consider Democratic unwillingness to lower the threshold a good thing or a bad thing, that’s just the way it is. Instead of lowering the cloture threshold, the rules reform campaign is focusing on other--still very important--changes to Senate procedure. The Senate probably will revert to a simple majority chamber the next time Republicans control both the White House and Congress (fine, I say), but it won’t happen in 2011-12.
Rules changes that are on the table
Instead of lowering the threshold, here is a list of the changes to Senate rules that are on the table, as proposed by a list of advocacy organizations taking part in this campaign (Daily Kos is one of those organizations). Numbers 2-7 are the changes to focus on, since #1 is a reiteration of The Constitutional Option and #8, as I noted, isn’t going to happen. I have notes explaining the changes to each:
Combined, #6 and #7 would make the filibuster a “real” filibuster. Those wishing to block a bill have to stay on the Senate floor and give a talk-a-thon, something which is not currently required under Senate rules. This is a proposed reform that I believe unites the Daily Kos community, whereas the call to lower the cloture threshold does not.
- On the first legislative day of a new Congress, the Senate may, by majority vote, end a filibuster on a rules change and adopt new rules. [The Constitutional Option.]
- There should only be one opportunity to filibuster any given measure or nomination, so motions to proceed and motions to refer to conference should not be subject to filibuster. [Currently, 60 votes must be achieved just to get to floor debates and amendments, as well as ending floor debates and amendments.]
- Secret “holds” should be eliminated. [A non-controversial change with broad, bipartisan support. If a Senator is going to deny unanimous consent on the motion to bring a bill to the floor, thus forcing a cloture vote, they must do so publicly.]
- The amount of delay time after cloture is invoked on a bill should be reduced.[This delay time is currently 30 hours, and is one of the main reasons why legislation moves so slowly in the Senate.]
- There should be no post-cloture debate on nominations.[This is currently 30 hours of debate on a nomination that has already been secured.]
- Instead of requiring that those seeking to break a filibuster muster a specified number of votes, the burden should be shifted to require those filibustering to produce a specified number of votes to continue the filibuster. [41 votes to maintain a filibuster, rather than 60 to end one.]
- Those waging a filibuster should be required to continuously hold the floor and debate.[Senators have to show up to filibuster, and can’t do it while raising money, talking to lobbyists, or drinking martinis.]
- Once all Senators have had a reasonable opportunity to express their views, every measure or nomination should be brought to a yes or no vote in a timely manner. [Basically, eliminate the 60-vote requirement, which isn’t going to happen in this round of reforms.]
Also, combined, #4 and #5 would reduce the amount of dead time in the Senate. Implementing these changes would significantly cut back on delay for the sake of delay. As such, this would have a big impact on judicial and executive branch nominations, both in 2011-2012 and beyond. These thousands of nominations could now be confirmed or defeated at a far, far greater speed than before. No more nomination limbo clogging up the Senate calendar. No more gaping absences in our executive and judicial branches of government.
To change the rules of the Senate, 50 Senators who will be in the 112th Congress (that is, no outgoing Senators), plus Vice-President Joe Biden, will have to agree on both using the Constitutional Option and on a package of reforms. The package of reforms, and whether or not to use the Constitutional Option, are thus separate whip counts.
There are already more than 50 Senators in favor of changing the rules in some way. However, they have not reached consensus on which reforms they want. Further, the number of Senators in favor of using The Constitutional Option to change the Senate rules is in the low to mid-40s.
Before dealing with the issue of whether or not to use the Constitutional Option, the Senate Democratic leadership is looking for the Senate Democratic rank and file to reach consensus on the package of reforms. In other words, rather than the leadership browbeating individual Senators into supporting specific rule changes, Senators are holding meetings amongst themselves to determine which rule changes everyone could live with. It’s difficult to know what is happening in those meetings, as they are Senators-only, with no staff allowed. Still, their proposals are likely similar to bullet points 2-7 outlined above.
The Senators leading these meetings are, variously, Harkin, Udall (Tom), Merkley, and Klobuchar. Almost all of the Senators involved are Democrats. Most, but by no means all, of the wavering Democratic Senators are among the more conservative, and / or longstanding, members of the caucus. Among Republicans, it seems that only incoming Senator Dan Coats is openly in favor.
However, since there is a real threat rules reform will take place, the Republican leadership is increasingly interested in cutting some sort of deal. For example, today Mitch McConnell tried to reach out to the Democrats leading the charge for reform. As with any fight, once those advocating for change demonstrate they have a real chance at success, those opposed to change start taking the reformers seriously.
That is where the rules reform fight stands right now. During the three weeks between now and January 5th, Daily Kos will be taking action to support the rules reform campaign.
Click here to join with over 22,000 other Kossacks, and be a part of that action yourself. If you have already signed up, click here to tell a friend about the campaign.