November 19, 2013
The Capitol is seen in Washington, Monday morning, Sept. 23, 2013, with only a week left for Congress to pass a funding bill in order to avoid a government shutdown. The Republican-led House on Friday approved legislation to keep the government running but at the cost of wiping out the Affordable Care Act, popularly known at
The Capitol (J. Scott Applewhite/Associated Press)

Reporting this afternoon indicates, as expected, that Democrats are moving toward threatening (again) to go nuclear — that is, to impose new Senate rules by majority vote (Dylan Matthews has a nice explainer about the whole thing). As I’ve been saying, Republicans have overreached (again) by blocking three spots on the critical D.C. Circuit Court. Unlike defeating by filibuster those nominees to whom they object most strongly, which did not draw nuclear threats when Republicans did it over the last four years, this one, if it continues, really does effectively nullify the election of Barack Obama and the Democratic senators. Therefore Democrats have little choice but to do something about it.

The first question is whether Senate Majoirty Leader Harry Reid of Nevada will have the votes to make the threat work. It’s very likely he will. He probably can’t get Carl Levin of Michigan, but he probably can get the other Democrats. Technically, Democrats probably could do it with only 50 (and Joe Biden breaking the tie), but they would be on much firmer ground if they stuck together.

The second question, then, is how Republicans react. They may back down, as they did this summer. They may force the issue because they believe the Democrats are bluffing. They may force the issue because they actually want Democrats to eliminate at least the judicial filibuster. Or, they may force the issue for a mixture of reasons, including that some senators think it’s a terrible idea but are more concerned about tea party primary challenges and are unwilling to supply the votes for cloture needed for a GOP retreat, even though they support that retreat.

What I wish would happen — although I absolutely do not expect it — would be a deal that would preserve but limit filibusters, especially on nominations. A compromise would preserve judicial filibusters, with the minority party agreeing to use them selectively. On executive-branch nominations, however, a good deal would preserve the ability of individual senators or small groups to use holds (to maintain their influence over policy) but adopt simple-majority cloture to make it easier for presidents to get the people they want to work with.

Actually, I think that both sides would benefit from such a deal. But, unfortunately, Republicans aren’t interested in compromise, so it’s not going to happen.

On legislation, I still would like to see the filibuster modified by initiating a Leadership Bill (or “Superbill”), once a year, that would replace reconciliation and would not be subject to the arbitrary budget restrictions that reconciliation has had. I’d also like to see appropriations bills protected from filibusters. Perhaps other modifications, too. These changes, however, would clearly help the majority party and hurt the minority, so they’re much less likely to be adopted. It is worth noting, however, that the legislative filibuster isn’t really that big a deal during divided government, and neither party knows which is more likely to have unified control in the future.

Oh, and all post-cloture time really should be use-it-or-lose-it.

Unfortunately, what I expect to happen is either a series of confrontations, with the minority backing down just in time, or, eventually, majority-imposed reform that would lead to the complete demise of the filibuster and, eventually, a House-like Senate run by the majority party.

But senators who really care about the Senate as an institution — and their rights as senators — really should find a compromise, be it these guidelines or others, that can preserve what’s good about the Senate while dialing way back on the dysfunction introduced by the breakdown in norms and the ratcheting up of filibusters.