Disclosure: I'm doing paid work on filibuster reform in the Senate for ProgressiveCongress.org, supported in part by CREDO Action and Blue America. We need your help to continue this work, and you can do it at no cost to you by signing CREDO Action's petition. Or hell, let it cost you something and go donate at Blue America's ActBlue page.
The launch of the Daily Kos Senate rules reform petition has raised a key question. What, exactly, are we asking for in this filibuster reform campaign?
Well, there are three things -- broadly speaking -- that need to happen in order to see rules reform implemented in the 112th Congress. First, we need for Senators to uphold their right to adopt new rules by a simple majority. Can that be done? Sure. Absolutely. It's not the adoption of a new rule that requires a 2/3 vote, as many have come to believe. That can and always has been done by a simple majority. What requires a 2/3 vote is invoking cloture on a rules change. But adopting the rule itself by simple majority vote? No problem. That's the actual, existing threshold. Because it is by default the actual, existing threshold for every substantive vote in the Senate. So in that sense, there's really nothing about this that has to happen, per se. It's already the rule. Yet we still find that the cloture issue and the actual adoption of new rules are so often conflated, it becomes a "task" in itself to remind everyone what the ground rules really are.
The second part is where it gets tough, but it's also where you can be of the most help. At this point, we'll need the Senators to uphold their right to end debate with a simple majority vote. Can that be done? Yes it can.
Now, this part worries a lot of people. They favor filibuster reform of some kind, but they aren't necessarily sure they want to see it eliminated entirely. So they worry that if the Senate asserts its right to end debate by a simple majority vote, that ends the question for ever after, and the filibuster has been eliminated.
But that ignores an important detail of the procedure that's sometimes described as the "constitutional option," which is that at the beginning of a new Congress, before any routine business is conducted, the Senate has the option of agreeing to proceed under the old rules, or instead moving to consider them anew. What that means is that the Senate is at that point operating outside of the rules, and closing debate by majority vote at that point does not by itself determine the Senate's cloture rules going forward. The Senate will not yet, at that point, have considered any actual proposed rules change. It will simply have voted to end debate on the proposed prospective change (or the motion to proceed to consideration of that change). There still has to be a vote on whether or not to adopt some proposed change, and that's a very different question. In fact, it's the third of the things that have to happen that I mentioned at the top.
What that change should be is still the subject of some debate, both among interested activists, and most assuredly among Senators themselves. And you can be sure that when it comes to the rules, the serious discussion and real decision making is happening Senator-to-Senator. Not here on the blogs, not on the op-ed pages, and not even among top Hill staffers. What we might want to see as the final product of rules reform ultimately doesn't really matter that much. Senators will regard this as something they'll have to work out for themselves.
But whatever you might think is the best and wisest reform, none of it happens without first acknowledging the Senate's right to determine its own rules of procedure at the beginning of a new Congress by majority vote. What new rules Senators might choose to adopt in place of the old is up to them, and it may well be that they ultimately find themselves unready to accept pure majority rule in all instances as the everyday standard in the Senate. But that's a decision they must first assert their right to make, and it starts by acknowledging that the Constitution confers that right free from the obstruction or binding of previous and defunct Senates.
So, to review:
- A majority of Senators insist on their right (and back it up with their votes) to consider rules changes and bring them to an actual vote by ending debate.
- Determine what those changes -- including any new rules about cloture -- will actually be for the rest of the session.
- Adopt those changes by majority vote.
There's nothing at all inconsistent about advocating for majority cloture on a new Senate's motion to consider new rules and advocating for some different cloture standard to be adopted going forward. And truthfully, Senators are going to be a lot less open to public pressure on what procedural rules they should agree to operate under in their daily work than they're likely to be to public pressure to stop pretending they don't have the power to adopt the reforms of their choice. That means that our role as activists is to let them know that we know that they have the power to respond to our demands that some reform be made. And the clearer we are about that, the better the chances they'll exercise that power.
What they do with it, though, is up to them. We can beg, plead and cajole, of course. We can tell them what we think might work best. But the decision is theirs to make. That's the power we've given them under the Constitution. We just need to let them know that the cat's out of the bag on rules changes, and that with a clear path available to them, they'll be accountable for the decision to adopt reform or turn their backs on it.
But remember, no matter what you may think is the most pragmatic, the most moderate, or the most level-headed reform, there's nothing pragmatic, moderate or level-headed about it if you don't acknowledge that step one in the process is agreeing -- even if only for one day every two years -- that the Senate has the right to hold a vote to implement that reform. Because there's nothing pragmatic, moderate or level-headed about fantasy.
That's why the Daily Kos petition on Senate rules reform reads so simply:
We need you to agree that the Senate can, and should, change its rules with a simple majority vote on the first day it is in session in 2011.