If you want to know exactly what’s happening on the campaign to change the Senate rules, consult Chris Bowers. Let me say at the outset that I do not expect this battle, even if successful, to usher in a new dawn in Washington where the legislature functions perfectly. Full elimination of the filibuster is not on the table, for instance, which should calm those who think a Democratic Senate stands in the way of some negative outcomes in the next Congress. What this campaign does offer is two-fold: 1) a recognition that the Senate can change its rules, will change its rules, and will react to further obstruction and delay by changing more of its rules; 2) the gradual, step-by-step elimination of excuses from people who claim to support a progressive agenda, but fall back on procedural nonsense as a reason it cannot get through the Senate. That’s important for the future, and for accountability. Even if streamlined Senate rules serve Republican ends in the future, I see no reason why that should stop anyone interested in full accountability for electoral outcomes.
So where do we stand? First of all, January 5 is the end date for this action. Right now, that’s the date when the Senate will hold a vote that would essentially allow them to change the rules. Tom Udall calls this the Constitutional option, and believes he can do it with a majority vote. History backs him up on this.
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.
The actual rules changes on the table, if the adoption of new rules succeeds, include these (I’m dropping off the Constitutional option, already explained above, and getting rid of the filibuster, because there’s simply not enough support right now to say it’s on the table:
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.]
Basically, these fall into two categories: 1) saving time, and 2) making the filibuster real for those filibustering. Both would really change how the Senate works. Plenty of bills and nominations don’t get called up because the Majority Leader has to prioritize floor time and can’t spend it on them. This would expand the calendar. Making the filibuster real would put the burden on the obstructors, which IMO is where it should be.
Bowers says that the number of Senators agreeable to using Tom Udall’s Constitutional option to change the rules is somewhere in the low to mid-40s. So there’s work to be done. While there are certainly ways to change the rules with a majority vote separate from the Constitutional option, and available at any time, there doesn’t seem to be any appetite to do it. As Jonathan Bernstein says, “the constraints are political, not legal.” I agree that the majority (in this case, the Democrats) should hold open the option of changing the rules mid-session, since this is in fact possible with a majority vote. But with January 5 three weeks away, and 50 votes within striking distance, it’s worth getting aboard this reform option.
The bigger problem is that there’s no consensus on the actual set of rule changes that the Democratic majority will push. Until you have consensus on that, I don’t think you’ll ever get 50 votes for the Constitutional option.
But that consensus must be congealing, because Mitch McConnell has begun to reach out to try and cut a deal on rules reform. There is a sense that a movement has formed, enough at least to spook the Minority Leader.
Udall and Jeff Merkley held a conference call on rules reform today, which sadly I couldn’t attend, but I will update you with anything else I learn soon.