Why filibuster reform failed, and where it might go next

January 24, 2013
Sen. Jeff Merkley didn't win this one. But he might win the next one. (Washington Post)
Sen. Jeff Merkley didn't win this one. But he might win the next one. (Washington Post)

A few thoughts on filibuster reform:

1. The reason there wasn't root-and-branch reform of the filibuster is that most Senate Democrats didn't want root-and-branch reform of the filibuster. "Do not underestimate how much appreciation for the filibuster there is among senators who have been in the minority of this body and have been able to hold up legislation," one Senate aide told me. "Remember, estate tax repeal got 59 votes in 2006."

2. The reform idea that got the most press was the "talking filibuster." I'm a skeptic. The Senate can do quite a bit more to force filibustering senators to talk right now. The reason it doesn't is that time is precious. The talking filibuster had many virtues, but at its core, it got the causality of the problem backwards. The reason the minority doesn't burn time on the Senate floor talking isn't because they don't want to. It's because the majority doesn't want them to.

3. The reform idea that held the most promise was the "41-vote rule." Right now, breaking a filibuster requires the majority to find 60 votes and put them in a room together. Under the 41-vote rule, the burden would reverse: Now the minority would need to put 41 votes in a room to keep the filibuster going. If they only had 38, the filibuster would be over. This would mean that if the majority leader decided to hold the vote on a weekend, or at 11:30 p.m., the minority could find filibustering quite inconvenient. And filibustering should be inconvenient. Versions of this idea existed in both the Merkley/Udall talking filibuster proposal and in Harry Reid's plan B. And senior Democrats who are skeptical of filibuster reform, like Carl Levin, were open to it.

4. In some ways, it's shocking that filibuster reform got as far as it did. Republicans hold the House, meaning filibuster reform now would not translate into new Democratic accomplishments. And as Sean Trende argues, Republicans have a natural advantage in both the House and Senate going forward, meaning that the next unified majority is very likely to be Republican. Now, the correct case for filibuster reform is that you want the Senate to work better, not that it helps one party or the other. But if you're a Senate Democrat, this will likely dim your enthusiasm a bit.

5. Remember, too, that none of the filibuster reforms under serious consideration would have meant a 51-vote Senate, much less eliminated all the other opportunities a dedicated minority has to obstruct daily business. Real filibuster reform would've meant a procedural war that Democrats weren't anywhere near prepared to win. In addition, Speaker John Boehner said the House wouldn't consider legislation from a post-filibuster reform Senate. It's very likely that a real filibuster reform fight would've destroyed the Democrats' agenda in the coming months -- think immigration and gun control -- and ended in a Democratic loss.

6. That said, if the next Republican majority turns around and eliminates or severely circumscribes the filibuster, as they tried to do in 2005, boy will the Democrats have egg on their face!

7. The filibuster's reputation is much weaker among the Senate's younger members than its older members. The older members can recall a Senate that worked, even with the filibuster. The younger members can only recall a Senate that doesn't work, in large part because of the filibuster. it's no surprise that the core supporters of reform were younger senators like Merkley and Udall. This morning, Reid mentioned that 43 of the Senate's 100 members were sworn in after 2008. What happens when leadership of the chamber passes to that generation?

 

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