Reid may still invoke the 'nuclear option' on the fillibuster. Reid seeks middle path on filibuster

Senate Majority Leader Harry Reid (D-Nev.) doesn’t plan to advance a “talking filibuster” proposal envisioned by liberals who want sweeping changes to the stodgy Senate.

But he still may invoke what critics call the “nuclear option” to change Senate rules that would limit the use of the filibuster, force senators to hold the floor in certain situations and require those stalling legislation to deliver 41 votes, several people familiar with the matter said Thursday.


( PHOTOS: Longest filibusters in history)

The contents of a filibuster reform package are not yet finalized, sources say, and Reid is still trying to cut a bipartisan deal with Senate Minority Leader Mitch McConnell (R-Ky.) to avert a partisan showdown on the floor next week. But Reid seems to have discarded one of the more far-reaching proposals sought by liberals — forcing senators to actually carry out a filibuster — because of fears that the plan would effectively kill the potent delaying tactic used frequently by the minority party.

Still, there’s a serious chance that Reid and McConnell will fail to cut a bipartisan deal. And that could prompt the Democratic leader to spearhead his own package and seek to change the rules by 51 votes — rather than a two-thirds majority that is typically required. That move would have major ramifications for the future of how the institution operates and prompt a procedural war with the GOP.

( Also on POLITICO: Democrats' hard road to a House majority)

Critics call that process the “nuclear option,” saying future majorities would then be able to cite the precedent and decide to change whatever rules they want with just 51 votes, effectively turning the body into the House and running roughshod over the minority party. Supporters argue the tactic is well within bounds of the Constitution that allows the Senate to set its own rules, arguing it would allow a simple majority to make the body more workable.

Reid is considering several significant changes to Senate procedures, several of which Republicans strongly oppose. But the plan Reid is weighing would not go as far as outspoken Senate liberals are advocating, including Sen. Jeff Merkley (D-Ore.), who is privately urging progressive activists to pressure Reid into pushing for a more aggressive package.

Reid’s most pressing demand is to eliminate filibusters used to prevent debate on legislation from starting. He also wants to end filibusters used to prevent the Senate from convening conference committees with the House. And he’s eager to pare back the use of filibusters on certain presidential nominations.

Senators could still filibuster in any number of situations under this approach. But Reid is weighing whether to shift the burden of the filibuster from those who are seeking to defeat it onto those who are threatening to wage one. Rather than requiring 60 votes to break a filibuster, Reid is considering requiring at least 41 senators to sustain a filibuster. That would amount to a subtle shift to force opponents to ensure every senator is present in order to mount a filibuster.

Reid is also weighing whether to offer a revised version of the “talking filibuster” plan. Under current rules, the Senate moves into 30 hours of debate once a filibuster is defeated. Under one idea Reid is now seriously considering, senators who refuse to allow the Senate to waive the 30 hours of debate would actually be required to go to the floor and make speeches until that time has expired.

“A big part of his goal is really just speeding things up, and stopping the situation where we spend a week on a bill that has 80 votes in support,” one senior Democratic aide said.

It’s uncertain whether McConnell will go along with any of these ideas. Reid may act as early as Tuesday on the package, but he can delay the matter for several days if there’s pushback from Democrats or if a deal with McConnell is on the horizon.

Procedural warfare has intensified in the chamber in recent years, and both Republicans and Democrats have sought to make the slow-moving chamber more efficient. McConnell has demanded that Reid stop employing tactics blocking Republicans from offering amendments on the floor, saying the majority leader has effectively forced the GOP into prolonging debate. But Reid has accused McConnell of waging an unprecedented amount of filibuster threats simply to block President Barack Obama’s agenda.

Still, what Reid is considering would fall short of a plan pushed by Sens. Merkley, Tom Udall (D-N.M.) and Tom Harkin (D-Iowa), who want to require anyone who is threatening to filibuster to actually carry one out on the floor — much like in the infamous movie classic, “Mr. Smith Goes to Washington.”

Under their plan, if a filibuster is not defeated — but at least 51 senators want to overcome the delay tactic — senators who are obstructing would go to the floor and carry out the talk-a-thon. But once the senators stop talking, the Senate could overcome the filibuster with just 51 votes, rather than the 60 that is currently required.

Republicans and a handful of Democrats oppose this approach because they fear that it would effectively usurp the power of an individual senator to filibuster and effectively lower the threshold to overcome a filibuster from 60 votes to 51. Reid appears to be in this camp, but also recognizes he may not have enough votes to enact the Merkley-Udall-Harkin plan, sources say.

Still, supporters of the “talking filibuster” plan say it would protect minority rights, end frivolous efforts to stall legislation and shine a spotlight on obstructionists in the body.

“I believe the ‘talking filibuster’ is a solution to the gridlock,” Udall told POLITICO on Thursday, though he reserved judgment on the latest ideas under consideration by Reid. “It’s still very much an option to proceed with 51 votes to cut off debate, and adopt rules, unless we see a significant proposal to changes the rules in a written form in some way.”

Supporters of enacting the ‘talking filibuster’ are trying to ratchet up pressure on Reid.

On a private call with the Bay Area Democrats on Wednesday, Merkley identified Reid as the key person in the talks, and he urged activists to target members of Reid’s leadership team ahead of their meetings next week, according to people on the call. He also characterized Democratic Sens. Max Baucus (Mont.), Patrick Leahy (Vt.), Dianne Feinstein (Calif.), Barbara Boxer (Calif.), Joe Manchin (West. Va.) and Mark Pryor (Ark.) as wrestling with his proposal, sources say.

Jamal Raad, a spokesman for Merkley, said the revised “talking filibuster” plan under consideration by Reid wouldn’t go far enough.

“Sen. Merkley is discussing filibuster reform with Leader Reid and pushing for a robust package of reforms that includes the talking filibuster,” the spokesman said. “Making senators talk post-cloture is a fine idea, but does not tackle the core problem we face in the Senate, the secret, silent filibuster.”