Is there consensus emerging on filibuster reform?
The filibuster-reform minuet has begun. Democrats have been talking "reform" for a little while -- namely, a three-part proposal from New Mexico Sen. Tom Udall to modify, but not eliminate, the Senate filibuster. But all of the sudden, now that it's time to vote on a Senate rule change and not just talk, the push for a filibuster revision appears to have lost steam. As has been widely reported, there is not yet agreement among Democrats on the specific type of filibuster reform proposal to offer. Instead, Senate Majority Leader Harry Reid is expected to delay a vote while Democrats consider their options.
A senior Republican advisor with whom I spoke last night predicts that the Democrats will "hold off until the 24th [when the Senate reconvenes]. My guess is they'll try to find something in the interim that doesn't require the nuclear option." The nuclear option, that is a rule change by bare majority vote which would touch off an inevitable backlash by the opposition, has long been decried.
Indeed it was the "nuclear option" that concerned the Post editorial board back in 2005. In the context of Bush judicial nominees, the board wisely cautioned:
The Democrats, after having proclaimed throughout the Clinton years the need for a fair process for nominees, showed no compunction about shifting gears and escalating the conflict -- using not only the procedural tricks that they once denounced but making the filibuster a routine tool in an already degraded process. What's more, they have shown no ability to distinguish between nominees genuinely worth opposing -- such as Justice Brown, whose philosophy really is outside the mainstream -- and conservatives, such as Justice Owen, whose records should not preclude service.
So we root essentially for both sides to lose and the Senate to win -- which is what the nascent compromise would provide for. The nuclear option would effectively circumvent accepted Senate procedures for changing Senate rules and is therefore unacceptable. But the nuclear option's defeat could be seen as legitimizing Democratic filibusters and encouraging future obstruction.
And indeed, the potential for a similar blow-up draws a warning from the editorial board some six years later: "[T]here are potentially dangerous consequences to changing the rules by majority fiat. In the short term, the maneuver would end any prospect, however slim, of continuing the type of bipartisan cooperation that emerged during the lame-duck session. Further poisoning the partisan atmosphere is the last thing the Senate needs at a time when lawmakers will be asked to tackle critical fiscal issues."
In a similar vein, Ruth Marcus warns Democrats that they are wading into dangerous territory: "If Democrats succeed in establishing that the rules are open for change by majority vote, what happens if Republicans win a Senate majority in 2012? Democrats have 23 seats to defend that year compared with 10 for Republicans. Anyone want to bet the mortgage money on the outcome?" It is precisely such fears that have caused some Senate Democrats to rethink the wisdom of the maneuver.
It is remarkable that the spirit of caution is so widely in evidence. Not to be left out, Senate Minority Leader Mitch McConnell also takes to the Post opinion pages to argue that there is mischief on both sides (there is "the Democratic majority's repeated use of a once-rare procedural gimmick that has kept Republicans from amending bills that are brought to the floor") and to remind Democrats that many of their senior members joined Republicans in 1995 to defeat a rule change by simple majority. Sounding much like Ruth (with whom, it is safe to say, he shares few views on anything else), he writes:
A change in the rules by a bare majority aimed at benefiting Democrats today could just as easily be used to benefit Republicans tomorrow. Do Democrats really want to create a situation where, two or four or six years from now, they are suddenly powerless to prevent Republicans from overturning legislation they themselves worked so hard to enact?
And have those pushing for these changes forgotten how their party used the rules of the Senate to block legislation when Republicans were in the majority? Given the ease with which majorities can shift these days, Democrats might want to be careful what they wish for.
Well then, can we all agree to step back from the ledge? Alas, there are plenty on the left egging on the Senate Democrats to disregard all this sage advice, so it remains to be seen whether the impulse to ram through a rule change for temporary gain can be squelched. For those of us who marveled at the outbreak of comity during the lame-duck session, we can only hope for the best.
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