Senate Democrats are struggling to unite behind a single filibuster reform plan. Dems stymied on filibuster reform

The first day of the new Congress was supposed to mark the beginning of the end of how the filibuster has been regularly used to kill legislation on the Senate floor.

But Democrats who have been complaining for two years about Republican obstruction are struggling to unite behind a single filibuster reform plan – and several are expressing reservations that they could set a dangerous precedent if Republicans return to the Senate majority after the 2012 elections. Republican leaders — who have been largely quiet in the debate so far — are planning to step up their attacks and portray any proposed changes in Senate rules as a power grab by Democrats.


“I think people need to understand that no one is naïve here, and that we have a very evenly divided Senate now and I don’t think any of us think that it’s beyond the possible that the Democrats can be in the minority in a couple of years,” Sen. Claire McCaskill (D-Mo.) told POLITICO Monday. “That’s why this effort is a pretty modest one.”

The debate rests around a series of proposals put forward by several Democrats, including one by Sen. Tom Udall (D-N.M.), who says that the Constitution gives the Senate ability to set its rules – and that on the first legislative day, such changes can be made by a simple majority of 51 senators. Since rule changes typically require support from two-thirds of the Senate, Majority Leader Harry Reid (D-Nev.) is facing new pressure to simply extend the first legislative day by recessing the chamber at the close of business – rather than adjourning. That move could extend that first legislative “day” for several weeks and could give Democrats more time to build support for their proposal.

Indeed, Sen. Jeff Merkley (D-Ore.) said the “best approach” would be to float one proposal, generate enough backing for it and eventually wait to take a vote until after the Senate’s upcoming mid-month January recess.

“I think there are a lot of mixed views at this point,” Merkley (D-Ore.), a leader of the effort, said Monday when asked about the debate inside the Democratic Caucus. “The widely shared sentiment is that the Senate is broken and that it is a responsibility of members to fix it. If you get into the details, you’ll find a bigger spectrum of views.”

But doing so will almost certainly open Democrats up to charges of manipulating the Senate only to change rules in order to benefit their legislative agenda.

“Voters sent a clear message to Washington last November and in no way did it have anything to do with Democrats changing the rules to make it easier to force through partisan legislation that Americans reject,” said John Ashbrook, spokesman for Senate Minority Leader McConnell (R-Ky.). “Their proposal is precisely the type of business-as-usual, backroom Washington power grab that Americans came out in droves to vote against.”

Senate Republican Conference Chairman Lamar Alexander (R-Tenn.) plans to reiterate those concerns in an address to the conservative Heritage Foundation Tuesday afternoon to warn Democrats that changing the rules now could come back to bite them in the future.

"The Senate is a place where senators representing millions of Americans are supposed to have their ideas heard and a real chance to impact legislation regardless of their party affiliation,” said Ryan Loskarn, staff director for the Senate Republican Conference. “Republicans believe rigorous floor debate and amending bills is how the Senate makes sure every Americans' voice is heard.”

McConnell has long criticized Reid for blocking the minority party from offering amendments to legislation – but Democrats counter that McConnell has abused the use of the filibuster.

There remains a possibility that the Senate may avert a floor fight altogether if a bipartisan agreement is reached, where Reid could allow for more open debate, while McConnell eases back on his party’s use of the filibuster. And Alexander, who is the incoming ranking member on the Senate Rules Committee, has had separate discussions on the issue with the chairman of the panel, New York Sen. Chuck Schumer.

Democrats say they don’t plan to do away with the 60-vote requirement to break filibusters – but want to discourage the overuse of the filibuster. Any senator can filibuster almost any Senate action – whether it’s bringing up a bill for debate or trying to push a measure toward a final vote. The cloture votes to override a filibuster can take days to unfold under the Senate rules.

In general, Democrats hope to narrow the scope of the filibuster, potentially doing away with the ability of one senator to simply object to even debating legislation. Democrats also hope to eliminate so-called secret holds, which allow senators to block legislation or a nomination anonymously. And they want to actually require senators to go to the floor and make their arguments public, much like the famous scenes in the movie classic, “Mr. Smith Goes to Washington.” These days, a simple threat of the filibuster is enough to thwart legislation and produce time-consuming cloture votes.

The problem for Democrats is that there have been several different approaches proposed, and the party hasn’t settled on one unified filibuster reform plan.

“There are 51 folks who have a lot of concern about the brokenness of the Senate,” Merkley said, “and I don’t think there are 51 folks on any specific proposal.”

McCaskill has been at the forefront of calling for the elimination of secret holds – and that effort appears to have the best chance of succeeding in the new Congress.

“Most of us want to support modest efforts at more transparency,” said McCaskill. “We’re not in any way diminishing the power of an individual senator to slow down the process…Where it becomes indefensible is the fact that it happens behind closed doors or in secret.”

Sixty-seven votes would be needed to change Senate rules, a highly unlikely scenario in a polarized chamber where Democrats hold a 53-47 majority. But the Constitution allows each house of Congress to set its own rules, and on the first day of the new Senate, a simple majority of 51 senators may be allowed to vote to change Senate rules after parliamentary rulings are made by the presiding officer, Vice President Joe Biden.

Udall, the New Mexico Democrat, has long planned to push on the first day of the new Congress what he calls the “constitutional option” – to allow future rule changes to be made by a simple majority vote. That would allow for subsequent changes to the filibuster rule to be made if Democrats limit their defections to just two members.

While Wednesday marks the first day of the new Senate, it remains doubtful that a major showdown of the rules will occur that day, aides and senators said Monday. But as Democrats try to forge consensus, Republican leaders plan to lay the groundwork to oppose any future rules change.

One of the demands Republicans are making is that any change should include commitments by Reid to limit his efforts to “fill the amendment tree,” a process by which the majority leader can effectively prohibit senators from offering amendments.

“Filling the tree to prevent amendments and cutting off debate to silence the minority is the sort of obstruction that has prevented the senate from doing its job,” said Loskarn, the GOP leadership aide.

Merkley, for one, thinks that reaching a deal to change Senate rules should include limits on filling the tree – but it’s unclear how Reid will come down on that issue.

Reid aides said that discussions were ongoing with McConnell to figure out a path forward. But any caucus-wide decision would likely wait until at least Thursday when the full Democratic Caucus meets for the first time in the new year.

In the meantime, Democratic proponents would undoubtedly have to soothe nerves on their side of the aisle.

“The one thing that worries me about this whole process is the law of unintended consequences,” said former Delaware Democratic Sen. Ted Kaufman, who was once a long-time Biden aide. “I’m not saying we don’t have to make changes, but we have to be careful that we don’t have any unintended consequences.”