The proposal would be the first order of business if Harry Reid follows through. Senators wary of nuking filibuster

Influential senators, fearful of Majority Leader Harry Reid’s threat to jam filibuster changes through the Senate early next year, have begun back-channel talks to avoid what critics dub the “nuclear option.”

( PHOTOS: Longest filibusters in history)


During floor votes, on the Senate subway and over breakfast meetings, senators from both parties are quietly trading ideas to avoid the precedent-setting move to alter filibuster rules with a simple majority — rather than two-thirds — vote. They’re alarmed that the move could fundamentally change the Senate: Future majorities could cite such a precedent to change whatever rules they want in an institution designed to protect the rights of the minority.

Frustrated by gridlock and buoyed by a supportive incoming freshman class, Reid appears close to securing enough support in his caucus to force through a series of revised rules on a party-line vote. The Democratic leader’s proposal would prohibit filibusters in a handful of cases. And senators couldn’t filibuster simply by threatening one; they’d have to actually carry out a talkathon session.

( Also on POLITICO: Right blogs: Filibuster 'bully' Reid)

The proposal would be the first order of business in the next Congress if Reid follows through.

So top Senate Republicans — including John McCain of Arizona, Lamar Alexander of Tennessee, Jon Kyl of Arizona and Lindsey Graham of South Carolina — are trying to head off the showdown. They’re reaching out to Democrats who have expressed concerns about changing the rules by 51 votes, including Sens. Mark Pryor of Arkansas and Carl Levin of Michigan. And Republicans are reaching out to a key Reid ally, New York Sen. Chuck Schumer, the No. 3 Senate Democrat and chairman of the Rules Committee, to see whether a deal can be cut before the new Congress convenes in January.

McCain called it a “meeting of the minds.”

“I’d like to see what we agree on and where we can share our mutual concerns,” the Arizona Republican said.

“We’d all like to avert the nuclear option,” Schumer told POLITICO, but he would only say there were lots of conversations occurring between different groups of senators.

“I’m not a fan of this,” Pryor said of the 51-vote option. “I’m talking to my Democratic and Republican colleagues about changing some things around here that would make the place run better but would also honor the integrity of our traditions around here.”

Several participants say these talks aren’t quite like the Gang of 14 negotiations in 2005. The group’s bipartisan deal preserved the use of the filibuster on judicial nominees and averted a Republican-led push to impose the nuclear option. But informal talks among various senators are picking up, with some hoping the efforts could lead to a series of bipartisan proposals that can be presented to Reid and Senate Minority Leader Mitch McConnell when their negotiations begin in earnest.

Alexander said the talks are focused on satisfying Democratic demands that Republicans stop filibustering Reid’s attempts to immediately bring bills to the floor for debate. And he said Republicans are urging Democrats to respond to the lingering GOP concern that they they’ve been prevented from offering amendments — something Republicans are now calling Reid’s “gag rule” to block amendments from votes.

Alexander, the Rules Committee ranking member, said the Senate would operate more efficiently if senators simply agreed to change their behavior, though he said some rules could potentially be changed.

“On both sides, we can point fingers,” Alexander said. “As a result, the Senate has really ground to a halt too often and it’s not really satisfying to any of us who serve here, and a general embarrassment when we go back home and tell people we are functioning in this way.”

The 67-vote threshold to change the rules was intended to make it harder for one party to work its will without significant bipartisan support. But advocates of filibuster reform point out that arcane procedures can be used to change the rules by 51 votes, particularly on the first day of a new session, a move they call the “constitutional option.”

Several times throughout history, the simple threat to employ this maneuver has prompted bipartisan deals and averted the controversial move on the floor.

In 1975, when a group of senators vowed to force changes in filibuster rules with a majority vote, the Democratic majority leader from Montana, Mike Mansfield, instead cut a deal that lowered the threshold to break a filibuster from 67 votes to 60.

Similarly, in January 2011, when Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) led the charge to overhaul the rules by 51 votes, Reid and McConnell reached a handshake agreement to try and make the Senate operate more efficiently.

But those promises quickly broke down during this Congress. Reid accused McConnell of threatening endless filibusters that have stalled President Barack Obama’s domestic agenda. McConnell attacked Reid for preventing Republicans from even having a chance to modify legislation by blocking their amendments.

After opposing the GOP’s 2005 attempt and the Udall-Merkley effort to overhaul filibuster rules by 51 votes, Reid has reversed course. He told POLITICO he “absolutely” is prepared to move ahead with his plan to change the rules with 51 votes.

With that prospect looming, supporters of filibuster reform say they’re encouraged to see some key GOP senators signaling they’d like to cut a deal.

“I think we may get something even better than what we have right now,” Udall said in an interview. “And I think that the closer we get [to 51 votes], the more we’re going to be able to engage some Republicans.”

Driving the effort to overhaul the filibuster are junior Democratic senators from the 2008 class who have never served in the Senate minority. When a senator threatens to filibuster, it can mean days of votes to overcome the objection — which can only be overridden by 60 votes. Democrats will occupy 55 seats in the next Congress after occupying 53 seats in the past two years.

The proponents want to stop the use of filibusters to block bills from being debated and House-Senate conference committees from convening. While those measures won’t prevent senators from filibustering in any number of other situations, Democrats want to discourage the use of filibusters by enacting a so-called talking filibuster. Senators would have to go to the floor and debate for hours on end, reminiscent of the 1939 classic movie “Mr. Smith Goes to Washington.”

Reid has support from much of the incoming Democratic class. But the vote comes at a risk for several incoming freshmen: They promised to work as bridge builders but face a highly partisan vote on the first day of the new session.

“I haven’t participated in the debate and heard all the arguments, but we have to do something to get Congress moving,” Maine Sen.-elect Angus King, an independent who promised to bring both sides together, told POLITICO. “And I certainly would consider” changing the rules by 51 votes.

Some senior senators are on board with this approach. Five-term Iowa Sen. Tom Harkin, for instance, has long vowed to dismantle the filibuster, believing it runs counter to the will of voters.

“I don’t fear democracy,” the Democrat said. “Republicans say, ‘Maybe we’ll get in and we’ll repeal Obamacare.’ I said, ‘If the people vote you in to do that, that’s your right.’ … Those votes have consequences.”

Indeed, McConnell has warned Democrats since Thanksgiving that going this route would set off a “bomb” in the institution and have grave ramifications for future Democratic minorities. And he’s been backed up in the House, where Speaker John Boehner has told Democrats that any bill that reaches his GOP-controlled chamber through this “heavy-handed power play would be dead on arrival.”

While many Democrats call those empty threats, others are more concerned.

“What goes around, comes around,” Sen. Dianne Feinstein (D-Calif.) told POLITICO.

Sen. Claire McCaskill (D-Mo.) said she supports the rules changes but acknowledged that the “process is flawed.”

Though some Republicans clearly want to avert a showdown, it’s far from clear that a bipartisan deal can be reached and win broad support.

“Yeah, maybe,” Graham said when asked if the talks were like the Gang of 14’s filibuster-saving negotiations. “I hope it’s the Gang of 68 instead of 14.”