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I updated you this morning on the votes we'd see on the Senate floor today with respect to Senate rules reform. But we were still waiting on any details on the "bipartisan agreement" part of the deal, which might end up being the only reform that gets done at all. That's obviously a pretty big gap in the news, but now we're getting word about what shape that agreement will take. It's not significantly different than what we anticipated, but here's the latest:

Democrats And Republicans Reach Agreement On Rules Package

McConnell Agrees Not to Pursue Constitutional Option "In This or the Next Congress"

Washington, DC— Democrats and Republicans reached an agreement on a rules package today that includes a pledge by Minority Leader Mitch McConnell not to use the so-called “constitutional option” to seek to change Senate rules “in this or the next Congress.”

“We are making these changes in the name of compromise, and this agreement itself was constructed with the same respect for mutual concession,” Sen. Reid said. “Senator McConnell and I both believe that our reverence for this institution must always be more important than party.  And as part of this compromise, we have agreed that I won’t force a majority vote to fundamentally change the Senate – that is, the so-called ‘constitutional option’ – and he won’t in the future. The five reforms we are making, however, are significant.  They will move us five steps closer to a healthier Senate.”

Under the terms of the agreement the senate will hold votes on:

  • Eliminating secret holds, including the right of senators to pass their secret holds to another anonymous senator to keep a rolling secret hold;
  • Eliminating the delaying tactic of forcing the reading of an amendment that has already been submitted for 72 hours and is publicly available;
  • Legislation to exempt about 1/3 of all nominations from the Senate confirmation process, reducing the number of executive nominations subject to Senate delays, which will be scheduled at a future date under the terms of an agreement reached by Sens. Mitch McConnell and Lamar Alexander, Homeland Security and Government Affairs Chairman Joe Lieberman and HSGA ranking member Sen. Susan Collins, along with Sens. Reid and Chuck Schumer.

In addition, in a colloquy entered into the record:

  • Sen. McConnell agreed not to use the constitutional option to seek to change Senate rules “in this Congress or the next Congress.”
  • Sen. McConnell agreed to reduce use of the filibuster on motions to proceed and Sen. Reid agreed to reduce the use of “filling the tree” to block all amendments.

“While we didn’t get everything we wanted to, the Senate will be a significantly better place with these changes,” Sen. Schumer said. “As a result of this agreement, there should be more debate, more votes and fewer items blocked by a single senator or a small minority of senators. Make no mistake about it: this agreement is not a panacea, but it is a very significant step on the road to making the Senate function in a better, fairer way. This would not have been possible without the continued insistence on change by Senators Tom Udall, Jeff Merkley and Tom Harkin. Their push to establish the Jimmy Stewart-style filibuster, which would require senators to actually hold the floor if they want to block a bill, is one I hope will be accepted by the other party in the future.”

The deal is what it is. In terms of real reform, it's next to nothing. But, still, next to. One-third of all executive nominations is one-third of 1400+. Eliminating the "secret" part of secret holds is... nice, though we were all hoping that they'd do something about the "hold" part. Being able to waive the reading of amendments -- including substitute amendments, which is the real problem -- so long as they've been publicly available for 72 hours is just good sense.

All of those things are subject to votes on the floor, of course, so their outcome is not guaranteed. The deal is that they'll get votes. The expectation is that they'll get enough votes to pass, of course, but if you think about it too hard, you'll realize that the fact that a "deal" had to be made even to allow those minimal reforms to come to the floor pretty much sums up everything that's still wrong with the way the Senate works. So yeah, there's a little bit of a "square one" problem inherent in this, to put it kindly. And recall what the Senate schedule page said about these votes this morning: the vehicles for adopting the changes with respect to the "secret" part of secret holds and the waiving of the reading requirement will still require 60 votes to pass. Why? Because although they'll be embodied in "standing orders" rather than rules changes, the debate on them are still subject to the filibuster. But since nobody actually wants to spend any time debating them, the agreement is that they'll require 60 votes to pass at all, a proxy for even the effortless modern filibuster, which we call the "painless filibuster." No formal cloture vote will be required, since the same 60-vote threshold will just be built into the vote on passage itself, so that everyone can catch flights out of town for the weekend.

(We've really gotten nowhere, when you think about that.)

The third leg of the deal, on cutting down the number of nominations subject to Senate approval, will require separate legislation, still to come. And yes, it will be subject to filibuster, just like everything else.

To the extent that there's any value to the deal on these matters, it's that the pre-debate discussions among leadership appears to indicate that they'll encounter minimal opposition, and are expected to get their 60 votes. But it's only an expectation. There's no real guarantee.

Part II of the deal involves the so-called "gentleman's agreement." That's the part where McConnell agrees not to filibuster the motion to proceed so much, and Reid agrees not to "fill the amendment tree" (which prevents Senators -- on both sides, quite often -- from offering amendments to bills). But the new twist is that they (presumably -- the text above only says McConnell) agree not to use the constitutional option to try to change Senate rules in this Congress or the next.

The second part of the "gentleman's agreement" addresses one of the bigger concerns Democrats have had, and the chief complaint of Republicans. Hey, I hope it works out.

The first part addresses the widely held belief that despite concerns among some Democrats that the majority may soon change hands, Republicans were likely to try and change the rules once the shoe was back on the other foot. That, of course, was the chief concern of Democrats reluctant to endorse the use of the constitutional option.

But there's something else interesting about this part. Either McConnell is acknowledging the legitimacy of the constitutional option and forswearing its use (if you believe him, or believe that this will obligate any successors in some way), or he doesn't believe in it and is therefore "giving away" precisely nothing in this part of the deal.

Or, as others have observed, he may be giving away nothing because he can't speak for what happens in the next Congress since his continuance as Republican leader is by no means guaranteed, and even if he could speak for the 113th Senate, breaching the deal at that point means nothing, since Democrats will already have met their obligations under the bargain.

And of course, if you do believe in the constitutional option, you probably also believe that one Congress can't bind the next one, anyway, and a determined majority of Senators are gonna do what they're gonna do, no matter what their nominal leader said in the last Congress.

Is it a "win?" No. But it should also be understood in context. Senate rules reform fights have never been won right out of the gate. The successful reforms of the past have all required several attempts, spread out in two-year intervals, sometimes stretching out over decades. In "blogging years," that's an eternity. In the United States Senate, where many members serve for 30 years or more, that can be the blink of an eye.

Originally posted to Daily Kos on Thu Jan 27, 2011 at 12:36 PM PST.

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