When I spoke with Jeff Merkley a couple weeks ago about Senate rules reform, he conceded that the Democratic caucus would have to arrive at a consensus set of rules before they would be able to hold together as a caucus and use the Constitutional option to change the rules by majority vote on January 5, the first day of the new Congress. That consensus has begun to take hold, and it comes in three parts, according to Sen. Tom Udall (D-NM), who is leading the effort.
The consensus package will aim to put an end to “secret holds” (anonymous filibuster threats) and disallow the minority from blocking debate on an issue altogether. Those two reforms are fairly straightforward. The third is a bit more complex. Udall, along with Sen. Jeff Merkley (D-OR), say there’s broad agreement on the idea to force old-school filibusters. If members want to keep debating a bill, they’ll have to actually talk. No more lazy filibusters.
But how would that actually work? In an interview Wednesday, Udall explained the ins and outs of that particular proposal.
“What we seem to have the most consensus on, is what I would call… a talking filibuster,” Udall told me. “Rather than a filibuster which is about obstruction.”
Doing away with secret holds won’t really do anything, in my view, though it feels good to assign a hold to an actual Senator rather than anonymously. The second part of this basically means ending the filibuster of the motion to proceed. That will allow the Majority Leader to bring anything to the floor, and will speed up the process significantly on non-controversial legislation, essentially cutting the time in half.
This third part is what Merkley has called “continuous debate.” After 41 Senators or more successfully maintain a filibuster by voting against cloture, they would have to hold the floor and go into a period of extended debate. Without someone filibustering holding the floor, cloture is automatically invoked, and the legislation moves to an eventual up-or-down vote, under this rule change.
This would institute the actual filibuster. The Majority Leader would have the capacity, which Harry Reid says he doesn’t have now, to force the minority to keep talking to block legislation. It becomes a test of wills at this point – whether the minority wants to hold out for days, or whether the majority wants to move to other legislation.
I think this could work as long as a few other issues get ironed out. For instance, post-cloture time on nominations should be eliminated, as there’s nothing to amend on a nomination. There are a couple other reforms like that which would basically allow the majority to take things with broad support and just pass them without delay. This would free up time for the majority to wait out a filibuster. Without that time, with other pressing matters sitting on the calendar, there would be a lot of pressure on the majority to move on. If you can strike a balance between allowing less delay on noncontroversial issues so that the party filibustering doesn’t have as many other choke points in the system, then at there would be an even chance of waiting out the filibuster. As it is, the majority could raise pressure with the media, and of course there would be more attention paid to a talk-a-thon in the Senate. But if talking continuously means that 100 other issues get piled up, I don’t know if the Majority Leader could wait that long.
What is good with this rule is that cloture gets automatically invoked. So it’s not a matter of pressuring individual Senators to split off, but just to get back the floor. The minority, then, doesn’t have to go on record in reverse of their position; they could just let cloture be invoked. The incentives are set up properly; painful to hold the filibuster, easy to let it go.
This will all get decided by next week, when Udall makes the motion for the Senate to change its rules January 5.
UPDATE: Jonathan Bernstein doesn’t think much of these rules changes, but he also doesn’t engage with IMO the most important one of this list, eliminating cloture for the motion to proceed, which will cut the time frame for noncontroversial legislation in half. Bernstein adds that using the Constitutional option at the beginning of Congress will make it harder to use what was called the “nuclear option,” which could be used to change the rules at any time, in mid-session. I don’t know why one has much to do with the other, but Democrats have never been ready to go there on the nuclear option, so just getting them to this point is pretty good work from the freshman Senators who just two years ago would have been laughed out of the caucus with this grievance.