The latest edition of campaign to reform the rules of the Senate is over. It will inevitably flare up again, as efforts to reform the rules of the Senate have taken place on numerous, though irregular, occasions over the past 100 years. Still, there is no denying we have just passed a peak of activity, and the next couple of years will be a valley of relative dormancy.
The outcome of this fight (read David Waldman's summary here) was as follows:
Real Filibuster
The real filibuster--which would mean both a talk-a-thon and 41 votes to maintain a filibuster rather than 60 to break one--was completely defeated. At most, it was supported by 47 Senators, all of them Democrats (the 46 "yea" votes here, plus John Kerry). However, not all of those 47 supported using the Constitutional Option to change the rules of the Senate.
The one bright spot on the real filibuster is that, among the Democrats who opposed it, only Mark Pryor was first elected before 1992. As such, it is possible to make this an ongoing campaign issue, and to one day elect a Senate where a majority of Senators favor enshrining the real filibuster in the chamber’s rules.
Nominations
The accelerated confirmation process for judicial and executive branch nominations was mostly defeated. What we wanted was to make the motion to proceed non-debatable (which would have potentially saved roughly two days on every nomination vote), and to eliminate the 30 hours of post-cloture debate time the minority can currently request. Instead of those reforms, Mitch McConnell has informally agreed to reduce the number of filibusters on motions to proceed, and to work on legislation that will reduce the number of executive branch positions that require Senate confirmation.
Constitutional Option
There is now a consensus that the rules of the Senate can be changed with 51 votes. A supermajority of Republican Senators agreed with that premise six years ago, and a supermajority of Democratic Senators agreed with that premise in 2011. Even those who oppose changing the rules with 51 votes either in 2005 and / or in 2011 no longer dispute the ability of 51 determined Senators to change the rules, but instead believe it’s not a good idea for the rules to be changed in that manner.
Case in point is the agreement Harry Reid and Mitch McConnell struck. In the agreement, they both now agreed to not change the rules of the Senate with only 51 votes until at least 2015. While this will almost certainly prevent the use of the Constitutional Option over the next four years, it validates the claim that the rules of the Senate can be changed by a simple majority of Senators.
Why wasn’t the Constitutional Option invoked this time around? Basically, because we couldn’t get the votes for it. In talks with people close to the process, I’ve heard any number of reasons as to why a significant number of Democratic Senators opposed changing the rules with 51 votes. These reasons include, in no particular order:
- Democrats performing poorly in the 2010 midterm elections, which both reduced the number of Dems available to support it and increased worries that it would actually help Republicans from 2011-2012.
- Fear the Republicans would engage in a more severe change in the rules with the Constitutional Option when they had a trifecta in 2013, along with potential foreknowledge that any deal with Republicans would include McConnell swearing off the use of the Constitutional Option until at least 2015.
- The timing of a potential vote on the Constitutional Option being close to the perceived success of the lame duck, the shootings in Arizona, and the State of the Union address, which all lowered desire among both the White House and Democratic Senators to engage in anything perceived as partisan.
- Opposition among pro-choice groups to rules reform that emerged late in the process, and which gave some wavering Senators a reason to back down;
I should emphasize that these are all theories held by people close to the process, and not confirmed reasons from Senators. Also, it’s difficult to know exactly how many votes were in favor of changing the rules using the Constitutional Option, but the best guess is that it was in the 30s, rather than the 40s.
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That’s how the fight ended, but it was a long way getting to that point. Given the critical role that tens of thousands of you played in this campaign, you deserve the backstory on what happened. So, in the extended entry, I’ve done my best to provide you with exactly that.
The start of the campaign
This campaign to reform the filibuster was led on the inside by three Senators--Tom Harkin, Jeff Merkley and Tom Udall--and on the outside by a semi-formal coalition of advocacy organizations called Fix the Senate Now. A list of the advocacy organizations participating in the coalition can be viewed here (PDF). This inside-outside model of a few champion Senators and a coalition of advocacy organizations has become standard fare on major center-left legislative efforts. There were some key differences to this iteration of that model, largely stemming from it started by a blogger, David Waldman of Daily Kos.
During 2009, David established himself as the most knowledgeable commentator on congressional procedure anywhere in the media, either mainstream or alternative, either online or offline. After he had risen to prominence in this area of commentary, a little over a year ago he began floating the idea of a coalition of advocacy organizations to work together on filibuster reform. In my many talks with David on this subject, he has told me that he thought such a coalition was possible because virtually every center-left advocacy organization had, by that point, seen much of its agenda thwarted by Senate rules. Further, he felt that such an institutional advocacy coalition was needed because a netroots-only coalition would not, in and of itself, have the clout or access on Capitol Hill necessary to move reform beyond a small number of champion Senators.
The political context of late 2009 strongly backs up David’s judgment in this regard. Defeat on the public option campaign had just been snatched from the jaws of victory when Joe Lieberman flat-out flip-flopped on the Medicare buy-in, mainly in order to piss off the netroots groups who were backing it. Lieberman’s decision in this regard was quickly backed up by the White House, or at least by Rahm Emanuel. No matter how far progressive netroots organizations can push the ball down the road on something they care about, there both was, and still is, good reason to think that something can be defeated just because netroots groups are viewed as the primary supporters of that thing. In order to win, we needed more institutional groups to be a part of the fight.
Further, there is still quite a bit of trepidation on Capitol Hill about dealing with the netroots. Daily Kos and other groups are working to close that rootsgap, but it can’t be solved overnight and ignoring it entirely would have been detrimental to the cause given the campaign’s timeframe. For example, when I began participating in the preliminary meetings on Capitol Hill with Senate staff about filibuster reform back in August, it quickly became apparent that Senate staffers were more comfortable talking with representatives of the Fix the Senate Now coalition when someone--aka, me--representing Daily Kos was not in attendance. While I still engaged in talks with Senate staff on numerous occasions during the course of the fight, for the good of the campaign I de-emphasized my role in that regard and focused on grassroots oriented activities.
None of this is to say that netroots organizations were excluded from the fight, or that netroots-centric coalitions are anything but extremely important. Rather, it’s simply to say that the growing discontent with Senate rules fermenting among the netroots in 2009 required collaboration with more formal, establishment advocacy organizations in order to get to the next level. Additionally, it was just as important that the netroots were not sidelined within the coalition to their common roles as ATMs and grassroots engines subserviently backing policies produced by Third Way and corporatist deals forged behind closed doors. That sort of arrangement takes place far too frequently, exacerbating the rootsgap and fueling widespread activist disillusionment.
In this coalition, the role of the netroots expanded. David was not only key in connecting some of the groups that would become most active in the coalition--the Communication Workers, Voice for Progress, Progressive Congress, Common Cause and others--but he served as the main legislative analyst for the informal alliance. What this meant in practice is that netroots groups were not brought in after the fact by the powers that be to provide grassroots muscle behind a legislative proposal produced by a status-quo institution like Third Way. Instead, Daily Kos--including David, myself and the 45,000 Kossacks who took part in the campaign--was able to become a full partner, directly coordinating with Senate staff and advocacy organizations, not to mention working to develop both the content of the reform proposals along with the strategy to get them passed, all in addition to providing essential grassroots support.
The course of the fight
Large meetings of the informal coalition began in August. Quickly thereafter, representatives from the coalition began holding meetings with Senate staff to take the temperature of where Senators stood on rules reform. As I already mentioned, I participated in several of these early meetings, bringing the Daily Kos Constitutional Option petition with me, but stood myself down a couple of weeks into the process.
It is important to note that all of the earliest, and most active, members of the Fix the Senate coalition were all in favor of lowering--or eliminating--the cloture threshold. I mention this because it is a common criticism of progressives that they pre-compromise or negotiate with themselves before the actual process of negotiating with reluctant lawmakers begins. At the start of this process, while there was not unanimity behind lowering the cloture threshold among coalition members, the desire to lower the threshold was definitely the message definitely delivered to Capitol Hill.
This message, however, quickly ran into several roadblocks:
- First, while virtually every Democratic Senator appeared supportive of reform of some type, very few were in favor of lowering the threshold. Just how few can be seen in the roll call vote on Senator Harkin’s rule reform proposal, which does lower the threshold. It only garnered 12 votes.
- Second, there was significant dissent among both the organizations participating in the coalition, and among the membership of those organizations, when it came to lowering the cloture threshold. Even at Daily Kos, it was quite clear that there was a substantial group of the community that was opposed to lowering the threshold. So, not only did it have nowhere close to enough votes, but the reform community itself was divided.
- Third, both every Senator and every member of the media covering the topic knew the votes for lowering the threshold didn’t exist. As such, maintaining a public stance in favor of lowering the threshold was, at best, a very bad bluff that did not strengthen our negotiating position but did divide many of our communities.
Despite all of this, these early meetings with Senate staff, and formative discussions on rules reform that took place right here at Daily Kos, were still quite valuable. The lesson was that support did not exist to lower the threshold, but support for some sort of reform--especially the talking filibuster and accelerating the nomination process--was nearly universal. You can
read about the impact these proposed reforms would have had here.
This knowledge allowed us to start staffing up for the post-election period. For our part, the Daily Kos community and Progressive Congress raised money to allow David Waldman to work nearly full-time on this campaign. From that point, as I saw it, the goal at that point was to get as many Democratic Senators as possible in order to make filibuster reform a reality in January of 2011. While I was pretty confident that Democrats would maintain control of the Senate, I also knew that 50 or 51 Senators would not be enough, because at least a few Senators would be opposed to all but the weakest of reforms.
When Election Day came, the final total Democratic turned out to be 53. While that was about what was expected, it was three short of what I feared would be needed to win meaningful filibuster reform. And, as the final tally on the Merkley package of reforms showed, victories by Sestak, Feingold and Giannoulias may well have given us a majority behind the reforms we wanted. If a few other events had gone differently, it might even have been enough to get us the Constitutional Option.
But, that didn’t happened, and we had to work with the Senate that was elected. So, during November the coalition forged ahead, working on the inside and the outside to hammer out a set of reforms that would make a significant improvement in how the Senate functions, which could be supported by a wide array of advocacy organizations, and win the support of a majority of Senators. You can read the reforms the coalition proposed here. David played a key role in crafting and which ended up being quite close to the package of reforms proposed by Senator Merkley.
At that point, we knew that we were very close to reaching a majority of Senators in support of the proposed set of reforms, but that serious problems were emerging on gathering enough support for enacting those reforms through the Constitutional Option. The hope was that once there was consensus within the Democratic caucus on what reforms were needed, then worries about using the Constitutional Option to enshrine those reforms in Senate rules would fall into place. Or, at the very least, that consensus on needed reforms, combined with a good bluff on the Constitutional Option plus strong grassroots pressure and positive media coverage, would make Mitch McConnell and Senate Republicans come to the table and support significant reform.
And so, the endgame began;
- The whip count team pushed into high gear, finding 47 Senators in support of the reform package by mid-January. This was a remarkably accurate count, btw, hitting the number on the nose.
- Grassroots efforts were stepped up, with coalition groups generating 200,000 petition signatures (including 45,000 from Daily Kos), 40,000 phone calls to wavering Senators, and five dozen positive op-eds placed in local newspapers.
- Senate Democrats gave the grand bluff a try, with all 53 signing a letter in favor of unspecified reforms and Harry Reid declaring that Democrats would enact change by themselves if Republicans didn’t negotiate.
The end result was, well, exactly what I described at the beginning of this article. We came up a few votes short on the package of reforms, and maybe a dozen votes short on the Constitutional Option. Some minimal, informal changes to Senate procedure were made in a gentleman’s agreement between Harry Reid and Mitch McConnell. Significant reform to the Senate now appears inevitable, but it probably won’t happen for several years.
And so, that’s how complaints about Senate procedure made by a few Cheeto munching bloggers almost resulted in the first major change to Senate rules since 1975. Writing it all out makes me quite emotional, mixing feelings of sadness from losing with pride over the way we fought. Tremendous credit goes to both David and the 45,000 Kossacks who took part. Heartfelt thanks also goes out to the Communication Workers, Voices for Progress, CREDO Action, Progressive Congress, Common Cause, the Sierra Club, USAction, the Strategic Consulting Group, New Partners, Legal Progress, the Alliance for Justice, Senators Merkley, Harkin and T. Udall, as well as every organization on this list. I hope I didn't leave anyone out.
Seriously--thank you to everyone who fought this one.