January 24, 2013

Senate reformers are disappointed in Harry Reid’s Senate reform package, which falls far short of what they were hoping for. The new plan will expedite most nominations, make bills easier to manage on the Senate floor, and make it much easier to get to conference after bills pass. But there’s nothing — absolutely nothing — here to break the 60 vote Senate. No “talking filibuster,” and no provision to require the minority to produce 41 votes to sustain the filibuster.

For anyone hoping for major reform, the result is a serious let down. For now, bills and nominations with the support of up to 59 Senators will still be defeated. End of story. But, really, this is no surprise. Sweeping reform was never really likely; there are just too many factors lining up against it:

(1) Virtually no individual senators want a House-like Senate (majority party dictatorship as long as the majority party can agree to things). As far as I can tell, that includes leading reformers Jeff Merkley and Tom Udall. That means even most Senate reformers have some sort of middle ground as their ideal — which means if they got everything they wanted, a lot of reformers outside of the Senate (most of whom want majority party rule) would still be disappointed

(2) Merkley’s “talking filibuster” idea was, I continue to believe, wrong-headed, and wasted a lot of reformer energy on a completely useless idea — that silent filibusters are the problem and are especially bad — instead of working on chipping away at the 60 vote Senate some other way.

(3) Democrat-aligned interest groups and activists did mobilize, but in my view not enough, and not effectively enough. My sense from the reporting is that while almost every Democratic Senator supported Merkely/Udall, only a handful of them were really strongly motivated by outside pressure to get behind real reform. This is an inherently difficult problem; it’s hard to get people interested in procedure.

(4) The argument that using majority-imposed reform — the “constitutional option” — would make it significantly more likely that Republicans would use majority-imposed reform themselves in the future appears to have been taken very seriously by many Democratic Senators. There was never any way that Democrats were going to be willing to use the so-called “nuclear option.”

(5) I continue to believe that common ground is available on reforming the procedure for executive branch nominations. However, Senators have little institutional incentive to care very much about them. The person who does is the President of the United States, and at least publicly he was AWOL on this. Moreover, Barack Obama’s general low profile and apparent lack of urgency on nominations in general have made it easy for Democratic Senators to downplay the problem.

Perhaps the biggest reason reform fizzled is that these problems are extremely hard to solve. Indeed, my feeling is that even full adoption of Merkley/Udall would have left many reformers disappointed now, and most of them disappointed down the road.

On the other hand, I also continue to believe that the 60 vote Senate this reform package leaves in place isn’t stable or viable over the long term. So this won’t be the last change. Hey — it might not even be the last change within this Congress. Stay tuned.