Fixing The Senate

FILIBLUSTER

Seriously – shouldn’t it be spelled that way? And what happened to the reforms we hoped we’d get that magical first day of the new Congress, when the Senate can (arguably) amend its rules?

If you’ve been paying attention, you know we got . . . nothing.

But if you’ve been paying really close attention – as Sandy Newman has – you know we actually have made gains.

From his email to supporters (a version of which is cross-posted at the American Constitution Society, here):

[We have achieved] what we think is some unexpectedly good news.

As you know, we had previously pulled together a coalition of groups to work on changing the Senate rules. We decided in November not to seek a change in the 60-vote threshold needed to break a filibuster. The changes that we sought would have reduced from four to one the number of opportunities to filibuster each bill, would have required Senators to stay on the floor and talk in order to sustain a filibuster, and would have limited post-cloture delay of judicial nominations.

In order to break an expected filibuster against those changes, we needed a majority of Senators to back a ruling (referred to as ‘the Constitutional Option’) that, at the start of a new Congress, a majority vote was sufficient to break a filibuster. We knew the odds were against us, but we felt the changes were important enough to merit undertaking an uphill battle. We also felt sure that, if the Republicans became the Senate majority after the 2012 elections, they would use the Constitutional Option to do away with the filibuster themselves, since it would no longer serve their interests.

Our three champions on this issue, Senators Tom Udall, Jeff Merkley, and Tom Harkin, proposed a joint resolution making these reforms when the new Senate convened on January 5th, and they worked extraordinarily hard to pass it. Together, we came close to garnering the votes we needed to uphold the Constitutional Option – but we didn’t quite get there.

Meanwhile, Senators Reid and McConnell asked Senators Schumer and Alexander to begin negotiations, with leverage provided by the reform effort. The deal they struck includes a key stipulation. McConnell and Reid both pledged not to use the Constitutional Option to change the rules for the next four years.

This is a very big deal. Looked at one way, the glass is half-empty because the agreement precludes our making another attempt to change the rules at least until 2015. But had we done nothing, the rules would have stayed as they are through 2012. Then, if Republicans won a majority, the rulebook would suddenly have changed to do away with the filibuster because it was getting in the Republicans’ way.

I can just imagine the millions of dollars and enormous energy many progressive groups would have felt they needed to put into that fight, as they did in 2005 when the Republicans tried to do away with filibusters on judicial nominations. And the result would likely have been similar to the result in 2005, when seven Democrats essentially agreed to give up use of the filibuster on court nominations in return for the Republicans not changing the rules. The result was that the filibuster was of little use to the Democrats when they were in the minority, but sprung back to life more powerful than ever as soon as the Republicans needed it to block legislation and nominations.

Whether one looks at this exclusively from a “good government” lens, or also looks at it through a second lens that considers the impact that rules have on progressive policy outcomes, having both sides play by the same set of rules is a good thing. From my perspective, this glass is half-full of bubbly!

The deal also includes four other components that will likely have a smaller (but perhaps still significant) impact:

Prohibiting anonymous “holds” and requiring that at least one of the Senators responsible for blocking any particular nomination or legislation disclose his or her identity;

For legislation that has been made available to Senators in advance, banning the delaying tactic of requiring that the entire bill be read aloud on the Senate floor.

Trimming from about 1,400 to 1,000 the number of executive branch nominations requiring Senate confirmation.

An “understanding” between McConnell and Reid that Republican filibusters of the motion to begin consideration of legislation, and Democratic use of procedures to prevent Republicans from offering amendments, will become “the exception rather than the rule.”

Neither McConnell’s agreement not to make rules changes by a simple majority in 2012, nor the other changes described above would have happened without the work that our Senator champions, our coalition partners, and many of you did over the last several months. They also might not have happened had we not been able, with your support, to pull together the reform coalition.

Separately from the negotiated leadership agreement, Senators Tom Udall, Jeff Merkley and Tom Udall will propose three measures: a revised version of the Udall-Merkley-Harkin Resolution; a stand-alone Merkley proposal requiring that Senators stay on the floor and keep talking if they want to sustain a filibuster; and Senator Harkin’s proposal to lower the filibuster threshold. Each of those proposals will be blocked by a filibuster. Because we didn’t have the votes to prevail on the Constitutional Option, a two thirds supermajority will be needed for cloture to break filibusters on these rule changes. None of these will garner two thirds support, so they will not get yes or no votes.

One other outstanding question, unlikely to be resolved this week, is whether Schumer and Alexander are able to negotiate any deal to shorten post-cloture debate on nominees. We’re checking whether there is anything we can do to increase the prospects for that.

In summary, we moved further than any Senate pro would have said was likely back when we started. We also have helped many Senators and scores of editorial boards and reporters realize that the Senate wasn’t intended to be a body in which 3/5 were required for action.

Voices for Progress didn’t by any means do this alone. The biggest share of credit should go to our champions, Senators Tom Udall, Jeff Merkley and Tom Harkin. Much credit should also go to our coalition partners including the Communications Workers of America, Common Cause, the Sierra Club, CREDO Action, Daily Kos, the Alliance for Justice, People for the American Way, the Brennan Center, the American Constitution Society, the AFL-CIO, the Center for American Progress, the Leadership Conference on Civil Rights, Progressive Congress, USAction, and many others. The coalition effort would have been far less effective if it weren’t for the financial support provided for its work from the Rockefeller Brothers Fund, the Communications Workers of America Atlantic Philanthropies, Sierra Club, and CREDO.

GOPROUD VS. FAMILY RESEARCH COUNCIL

Let’s go to the videotape – the debate being whether the Family Research Council should be boycotting CPAC today, and whether they’re doing so because they don’t like gay conservatives. Three minutes to each side.