Apparently, as part of Harry Reid’s agreement not to push for filibuster reform, he extracted a promise that Mitch McConnell will not attempt to use the 51-vote “Constitutional Option” to change the rules when he is (presumably) the Majority Leader after the 2012 elections. When it comes to predicting that McConnell will be the Majority Leader, the odds favor it because of the vast disparity in vulnerable seats up for reelection next time around. But, as Tom Harkin (D-IA) notes, such agreements have little force.
This week’s Reid-McConnell agreement — that neither this Congress nor the next one will invoke the Constitutional option — is peculiar. Any individual Senator can decide to to touch off that process if he or she is so determined. What Reid and McConnell have agreed, in essence, is to twist arms and throw up hurdles to prevent their own members from going rogue.
“It has no force in effect,” Harkin said. “It has no force in effect on anyone around here, that’s just their agreement. It’s like any of those other kinds of gentleman’s agreements around here — some little thing can happen that will change how they view it, for example. So it’s nice to have that agreement but it doesn’t mean anything.”
At a Democratic caucus meeting Tuesday, though, Reid proved he has the power to make good on the agreement. A few hours after it ended, Udall, Merkley and their supporters dropped their effort.
The Democrats are looking at the matchups in 2012 and no doubt are convinced that they’ll want super-duper minority rights when the time comes for them to return to the minority. So, in the meantime, they’ve forfeited their ability to pass anything in the Senate that doesn’t come with the endorsement of at least seven Republican members. That isn’t that big of a sacrifice since they are already facing a situation where they can’t pass anything that isn’t supported by John Boehner’s House. Instead, they wrung more tangible and useful benefits out in the bargain.
In exchange, the Senate agreed to ban secret holds and to waive, under certain circumstances, the forced reading of amendments. They also agreed that several hundred mid-level executive-branch positions would no longer require Senate confirmation.
Those are changes that will yield real results. I see why they made the deal. But it leaves in place a stupid, anti-Democratic system. It will help us preserve reproductive rights and probably some labor rights when the Republicans again achieve the Holy Trinity of controlling the White House and both houses of Congress, but it will prevent us from doing anything transformative when we hold the Trinity again.
Our system sucks, and Harkin is frustrated enough that he is considering challenging the filibuster in court.
“It’s clear now that the Senate can not change its rules,” Harkin told me in an interview Thursday evening. “It can not.”
There’s a strong chance that the courts would refuse to hear a case like this. But Harkin believes the issue is justiciable.
“Most people would say, well the courts won’t handle it because it’s a political question. But I think in this instance it’s more than a political question — it’s a Constitutional question,” he said. “I’m looking at that. I’m working on some things right now. But I wanted to do this first obviously to see whether or not it was still possible. I don’t think it’s possible.”
I think that word should be “judicable.” In any case, I don’t see Harkin succeeding in getting his case heard, let alone him winning it. So, we’re stuck with this crappy system. And let me just get you to picture the situation. Imagine, if you will, that Obama wins reelection in a landslide and perhaps that we even win back the House. If we don’t have sixty votes in the Senate (and we’re more likely to have about forty-eight) then he’ll be completely handcuffed in his second term. And the reason is simple. This week the Democrats in the Senate looked out for their short-term interests, bet on defeat in 2012, and sold-out our future.
And people wonder why progressive politics are so frustrating. We can work as hard as we want, be successful beyond any realistic expectations, and the result will be no different than the last two years, and probably more like the two shitty years to come. How do you motivate yourself, let alone others, to work for change under such circumstances?
