Senators Getting Cold Feet on Changing Rules By Majority Vote
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The one reason that a set of filibuster reforms that fall short of eliminating the 60-vote Senate may still allow for majoritarian democracy in that body is that it would set the precedent that the Senate can determine its rules with a majority vote rather than a 2/3 vote. The minority still obstructing consistently would have to think about what might happen if the majority has the ability to further tweak the rules in future years, further limiting their ability to obstruct.
So of course, that’s the one sticking point in the filibuster reform measures that Harry Reid wants to implement.
During floor votes, on the Senate subway and over breakfast meetings, senators from both parties are quietly trading ideas to avoid the precedent-setting move to alter filibuster rules with a simple majority — rather than two-thirds — vote. They’re alarmed that the move could fundamentally change the Senate: Future majorities could cite such a precedent to change whatever rules they want in an institution designed to protect the rights of the minority [...]
top Senate Republicans — including John McCain of Arizona, Lamar Alexander of Tennessee, Jon Kyl of Arizona and Lindsey Graham of South Carolina — are trying to head off the showdown. They’re reaching out to Democrats who have expressed concerns about changing the rules by 51 votes, including Sens. Mark Pryor of Arkansas and Carl Levin of Michigan. And Republicans are reaching out to a key Reid ally, New York Sen. Chuck Schumer, the No. 3 Senate Democrat and chairman of the Rules Committee, to see whether a deal can be cut before the new Congress convenes in January.
The same “nuclear option” that these eminences grises of the Senate Republican caucus now purport to be wary of was the one many of them were on board with using in 2005 for judicial nominations, in the middle of a Senate session, rather than at the beginning of the session, as under the Udall/Merkley “Constitutional option.” This idea that if the Senate can set its rules by majority vote, then cats and dogs will start living together, is really amazing. What other organization in the world objects to the mere setting of rules for conduct for the body with a simple majority?
For those not wedded to Senate tradition like myself, this use of the simple majority doesn’t strike me as a difficult call. To those steeped in that tradition, perhaps it feels like the world will change. But that world has changed. The Senate has gradually but inexorably become a dysfunctional body because of the mass of veto points that can be wielded by any individual member. This creates a crisis for democracy, and needs to be dispensed with as soon as possible. It would particularly make sense to do this now, under divided government, so that the alleged tyranny that would result would accomplish virtually nothing. It would just mean that the Senate can function like a legitimate legislative body once again.