There is some weird stuff going on with filibuster reform that you can read about here. You may remember that we’ve been talking for a long time about a “nuclear option” or a “constitutional option” that would be invoked on the first day of a new congress in order to change the rules of the Senate with a mere majority of the votes. I’m not going to go over all the details again (the linked source is an adequate refresher). What’s important is that Senate Majority Leader Harry Reid can use a procedural trick to extend the period of time he has to change the rules far beyond tomorrow. He could extend the “first legislative day” of this Congress all the way to January 22nd, when the Senate is due to convene for business. So, all the new members would be sworn in and then Reid would merely recess instead of adjourning the Senate.
In the meantime, Reid would negotiate with the Republicans in order to come to some kind of agreement that could win the approval of three-fifths of the Senate. This would be a “non-nuclear” way of changing the rules. The outlines of a possible compromise show that the Republicans are seriously worried that the Dems have the votes for a nuclear option and are therefore quite willing to make some serious concessions.
However, at least so far, the Democrats who have been leading the charge to change the filibuster rules are nowhere near satisfied. They want to create a “talking filibuster” both because it would make filibusters less common and because it would make those who filibuster more visible and accountable.
It’s an interesting set of considerations worthy of some serious game theory. How much power are you willing to take for yourself in the majority, knowing that you will one day be in the minority? Is transparency and accountability more important than getting a large bipartisan consensus that the minority’s ability to obstruct for obstruction’s sake should be severely curtailed? What are the downsides in the short and long term to using a mere majority to change the Senate rules, and how much are you willing to give up to minimize or avoid those downsides?
What is certain is that senators like Tom Udall of New Mexico and Jeff Merkley of Oregon have already locked in significant concessions from the Republicans by making such a credible threat against the filibuster. Since Carl Levin of Michigan and John McCain have floated the following deal in response, we can consider these positive changes as the bare minimum we’ll get in any deal:
Levin and McCain, the chairman and ranking Republican of the Senate Armed Services Committee, respectively, have put forward a three-part reform of the filibuster rule.
Their proposal would make it easier for the majority leader to take up new business by empowering him to deny the minority the ability to filibuster motions to proceed. In exchange, the leader would have to guarantee the minority leader and a bill’s minority manager each the right to offer an amendment, even an amendment on non-germane business.
The leader would have the option of scheduling an immediate vote to end a filibuster of a motion to proceed if five additional senators from each caucus sign a cloture motion.
Additionally, the Levin-McCain plan would speed the process for bringing legislation to conference negotiations with the House. It would collapse the three motions currently needed to proceed to conference into one motion that could be voted on after two hours of debate.
Their proposal would also speed consideration of lower-level executive and judicial branch nominees. Motions to end debate on non-Cabinet-level officials and district court nominees could receive votes after two hours of debate.
Levin and McCain have proposed putting the new process in place through a standing order, which would need to be approved by three-fifths of the Senate and would sunset at the end of two years.
Personally, I think that that deal isn’t good enough. But I sure am glad to know we’re going to do at least that well.