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Posted at 1:55 PM ET, 01/ 4/2011

Merkley: Delay could be good for filibuster reform

By Greg Sargent

A quick filibuster reform update.

With the internal debates among Senate Dems over filibuster reform moving very quickly on the Hill right now, some people seem worried about the fact that Harry Reid is reportedly seeking a delay on introducing reform, in order to negotiate with Mitch McConnell in pursuit of some kind of deal. This has folks nervous that Dem leaders will cave on real reform in the quest for compromise with the GOP.

But a key Dem Senator pushing reform tells me that this may be the wrong conclusion to draw. Senator Jeff Merkley of Oregon, one of a number of leading young reformers, argues that this could actually be a positive -- it could lead to a drawn out public debate that could increase organizing time and increase pressure for real action.

Right now, the leading Dem Senators pushing reform -- Merkley, Tom Harkin, Tom Udall, and Amy Klobuchar -- are in private discussions over precisely how to proceed tomorrow. They have vowed to introduce a package of reforms tomorrow, but it isn't clear yet precisely what will be in that package.

Complicating matters, Republicans are now hitting back hard at Dems, characterizing filibuster reform as some kind of "power grab" that would destroy relations between the parties. And Reid -- perhaps in reaction to the GOP attacks -- seems to be seeking some kind of delay that will put off action on whatever package the reformers do want. The question is whether this means Dem leaders are "flinching" in the face of the GOP onslaught, as CBS News puts it.

But Merkley insists in an interview that the reformers are pressing forward. They are undaunted by Reid's delaying of the process, and are hoping to turn it into an opportunity to force an extended public debate over the need to fix the filibuster and address Senate dysfunction once and for all.

"Let's use this time to turn this into a national debate," Merkley argues. "We're advocating and we're pressing. Let's seize this opportunity to build momentum."

The Senate being the opaque place that it is, no one can quite figure out what Reid is doing right now. The questions that need to be answered are: Is Reid working with the reformers to craft a package that is acceptable both to them and to Republicans? Or is he pursuing negotiations with McConnell separate from what the reformers want? Is Reid prepared to support a "compromise" reform package that McConnell likes but the reformers reject?

To hear Merkley tell it, reformers remain optimistic that Reid's intentions are good. I'm told a meeting is ongoing right now among top Senate staffers to hash out these and other questions. More when I learn it.

By Greg Sargent  | January 4, 2011; 1:55 PM ET
Categories:  Senate Dems, Senate Republicans, filibuster  
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I thought this change had to happen at the beginning of the new Senate session to be applicable.

Posted by: boloboffin1 | January 4, 2011 2:04 PM | Report abuse


"Obama eyes ex-Clinton aide as econ adviser"

Obama is horrible. Absolutely horrible. And getting worse all the time. I assume the spineless Republicrat Dems won't challenge Obama so, please god, let The Greens nominate someone decent. ABO in 2012.

Posted by: wbgonne | January 4, 2011 2:10 PM | Report abuse

It has to happen before the Senate conducts any substantive business, though it could happen later if arranged by unanimous consent.

But that's only if they want to adopt changes under the theory that it's best to do so at the start of a session, as most legislatures do. Theoretically, the same can be done whenever a majority determines it wants to allow it.

They pass rules changes, for instance, in most budget resolutions. And that happens in the middle of a session. But they all know it and are aware of it.

The point would be to minimize disruption and be as fair about changes as possible. But no, technically nothing limits them to that.

Posted by: djwaldman1 | January 4, 2011 2:11 PM | Report abuse

@Greg: Does this mean that the "constitutional" option (that would require only 51 votes to change the rules) is dead?

Posted by: sbj3 | January 4, 2011 2:14 PM | Report abuse

And by the way, because Senate debate on budget resolutions are time-limited by statute, they are not subject to the filibuster. Which means that the rules changes they contain are passed without the need for 2/3 cloture. And it happens almost every year, though no one notices. Even though the section of the budget resolutions that carry the changes have bold, all-caps titles that say "EXERCISE OF RULEMAKING POWERS."

Posted by: djwaldman1 | January 4, 2011 2:14 PM | Report abuse

"It has to happen before the Senate conducts any substantive business, though it could happen later if arranged by unanimous consent."
As is everything in the Senate. However, rules changes require 67 votes, *once the previous rules are adopted*. This is because the 'filibuster' is only contained in the Senate rules. Once they are in effect, you need 67 votes to change the rules as laid out by the rules.
The 'budget reconciliation' process you note is also in the rules. It exists because a compromise was reached years ago to prevent filibusters from shutting down the funding bills. If a bill only deals with budget matters it can be subject to this. As happened during the Health Care debate, the Senate Parliamentarian had to rule that provisions were or were not budget related to allow votes to pass with a simple majority - as noted by the rules for budget reconciliation.
So in short, no you can't change the rules in the middle of the session without 67 votes as is currently specified in the rules.
You can do it at the start of Congress *before* those rules of the previous Congress are adopted.

Posted by: rpixley220 | January 4, 2011 3:04 PM | Report abuse

Have the Democrats considered what life for them will be like when the Republicans regain majority status? Will they still be enamored of these new rules?

Posted by: skipsailing28 | January 4, 2011 3:30 PM | Report abuse

All, looks like House GOP won't allow any amendments to the health repeal bill:

Posted by: Greg Sargent | January 4, 2011 3:43 PM | Report abuse

I've heard that Max Baucus, Olympia Snowe, Mike Enzi, and Chuck Grassley are negotiating this. They will need a couple more months, but Baucus is pretty sure they can all come to some sort of amicable proposal.

Posted by: flounder2 | January 4, 2011 4:21 PM | Report abuse

I'm sensing a prelude to a massive cave...


Posted by: Alex3 | January 4, 2011 4:41 PM | Report abuse


That's certainly the preferred method for changing the standing rules, yes. But you can get the same effect by ignoring the parliamentarian, having the chair rule contrary to his advice, and using your majority to table appeals of the chair's ruling and/or any points of order brought.

That's what the so-called "nuclear option" was about. And because the Constitution grants the Senate the right to determine its own rules of proceeding, the decision of a majority in the Senate would almost certainly be immune from any kind of outside review, including the courts.

It wouldn't change the text of the standing rules, but it would create precedent contrary to them, and more importantly, it would work for whatever purpose you might have in doing it.

But it's also considered unfair, and therefore undesirable.

More to the original questioner's point, though, the "first day" of the session can last an awfully long time, if you're talking about the first "legislative day." And a unanimous consent agreement to allow later debate -- or an agreement that forestalls the consideration of any substantive business that would otherwise signal the Senate's acquiescence to the continuance of the old rules -- can have the same effect.

Again, in the "first day" scenario, the key is the conduct of substantive business under the old rules. If for some reason the Senate didn't do any such business for the first 100 days of the session, the opportunity to make "first day" changes would presumably still be available.

Posted by: djwaldman1 | January 4, 2011 4:57 PM | Report abuse

@dj: If the Senate didn't do any such business for the 100 days or so - wouldn't that mean that Biden would have to preside over the Senate for 100 days? That's all we need...

They'll agree to some "reforms" but the filibuster ain't going nowhar.

Posted by: sbj3 | January 4, 2011 5:16 PM | Report abuse

The best filibuster reform idea I've seen still came from one of Steve Pearlstein's online chats.

Basically, eliminate the filibuster on a Motion to Proceed, but also eliminate the parliamentary tactic of filling the amendment tree to prevent the minority from offering amendments.

"Alexandria, Va.: I read with great interest your article regarding the Rules of Procedure of the Senate, and the use of the filibuster in particular.

I have worked for a US Senator for more than 20 years. During that time, the majority has shifted from the Democrats to the Republicans and back again. I have marveled at the wisdom of the Founding Fathers to establish a bicameral legislative branch of government.

You are correct -- the Senate is designed to protect the rights of the minority. That is an essential component to the framework of our Constitution and it must not be abandoned.

The filibuster has gone from a rarely-used procedure to a common occurrence. This calls for reform, not repeal.

My suggestion is similar to yours, but would be considered anathema by Senators. The Senate Rules of Procedure should preclude the use of the filibuster on a Motion to Proceed, or to bring a bill before the Senate for unlimited debate. This would also require elimination of the parliamentary tactic of "filling the amendment tree," thereby blocking additional amendments to be offered. This would ensure all ideas could be offered, debated, and voted upon.

Only after a full and fair debate and amendment process should the filibuster be permitted, and then only to end debate. Doing so would ensure that legislation is, at a minimum, considered by the full Senate. It could have the effect of forcing compromise during the amendment process to achieve consensus.

And, most importantly, these changes would retain the extremely important principle of protecting the rights of the minority to block a bill if a 60-vote majority is not achieved.

Steven Pearlstein: Yes, we do agree. when no other business is on the floor, a motion to proceed to an item on the Senate calendar should be considered a non-debatable motion. If someone wants to filibuster, let them filabuster the entire bill. "

See also Mitch McConell's Op-Ed today:

Posted by: jnc4p | January 4, 2011 5:56 PM | Report abuse

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