Filibuster Rules Changes Epitomize the Senate

The more things change…
The Senate has spoken—at length—and the result is…not much. This sentence could characterize the 112th Congress as well as the changes agreed to in Senate Resolution 16, the first roll call of the 113th (86 yeas, 9 nays). After months of the majority’s frustration with constant filibuster threats, impassioned pleas for change, righteous indignation from the minority, and warnings of “be careful what you wish for” from senior Democrats who remember what it’s like to be in the minority, the Senate ultimately did what it’s designed to do: compromise. Republicans agreed not to filibuster the “motion to proceed” to consideration of a bill in exchange for Democrats’ allowing them to offer amendments.

Under previous rules, a senator could prevent a bill from even coming up for debate and the Majority Leader could “fill the amendment tree” to block any amendments. The changes mean that a senator can still filibuster a bill, but not the motion to take it up, and the minority will be entitled to two of the four amendments pending on the “tree.” The practical implications are that Majority Leader Harry Reid (D-NV) will be able to proceed with legislation on the floor but will no longer be able to shield his vulnerable colleagues from potentially embarrassing votes on Republican amendments. The threshold to impose cloture remains 60 votes.

The word “filibuster,” which never appears in the Senate’s rules, is actually a 19th century piracy term derived from “free booter” and refers to the Senate’s principle of unlimited debate. Under regular order, any senator can “hold the chamber hostage” by preventing a vote on a bill or nominee by talking on the Senate floor. Like nuclear deterrence, the threat has been sufficient to bring about the desired result, so Mr.-Smith-Goes-to-Washington-style talkfests where a lone senator gets hoarse while perorating for hours are rare.

In 1917, the Senate adopted Rule 22 whereby a small group of senators (currently 16) petitions to “invoke cloture.” The petition “lays over” for two days and then the Senate votes to decide if debate should be brought to a close so the Senate can vote on the measure and move on. Until 1974, imposing cloture required a 2/3 supermajority; since then, it has been slightly easier at 3/5, or 60 votes. Another change is that it will take just one motion instead of three to go to conference, meaning some major legislation might once again be hammered out by conferees with subject-matter expertise. Only about 10% of legislation goes to conference anymore. The balance either dies or is resolved by trading amendments between chambers, a process known as “ping-ponging” that gives more influence to the leadership.

…the more they stay the same
Reid rejected calls for changing the rules at the beginning of the last Congress, but by the 113th, he was on board. It is no coincidence that demands for reform came from some of the newer Democratic senators; a majority of the Democratic caucus has never served in the minority. It is also worth noting that a majority of the Senate has served previously in the more rough-and-tumble, partisan, majoritarian House and is impatient with the Senate’s glacial pace.

Senators Tom Udall (D-NM) and Jeff Merkley (D-OR) led the charge for the “talking filibuster” which would require senators to actually hold the floor a la Mr. Smith. This would have effectively shifted the onus from 60 senators necessary to shut off debate to having 41 present to continue the filibuster. But like Senator Tom Harkins’s (D-IA) more radical proposal to lower the number necessary to invoke cloture, this step encountered resistance on both sides of the aisle and was unlikely to command the 2/3 majority required to change Rule 22.

In what is becoming Senate tradition, a bipartisan “gang” of senators—this time led by Carl Levin (D-MI) and John McCain (R-AZ)—jumped into the fray with the compromise that eventually passed. While proponents of change were bitterly disappointed, many Democratic old-timers reminded their more junior colleagues that they won’t always be in the thwarted majority but will find themselves in the beleaguered minority. With 20 seats to defend to the Republicans’ 13, at least two retirements already, 7 incumbents running in states Obama just lost, and the midterm of a two-term president (“the six year itch” election) in 2014, that day may be sooner rather than later. Besides, the ability to threaten a filibuster is what makes every senator uniquely powerful regardless of party.

Stepping back from the abyss or chickening out?
How the filibuster rules were changed mattered as much as their substance. Reid was under some pressure to employ a simple majority vote at the beginning of the 113th Congress instead of following the 2/3 requirement to enact changes. This would have meant a ruling from the presiding officer to overturn precedent and would have poisoned the well with the minority from the very start—quite a risk given the legislative agenda ahead. Reid’s decision to stand down from what supporters dubbed the “constitutional option” and opponents called the “nuclear option” shows how institutional norms in the Senate can still trump partisan advantage. In this hyperpolarized atmosphere with a full plate of unfinished business and looming deadlines, the Senate—in its bipartisan, personal relationship-based, consensus-oriented, incremental way—has arrived at détente.