Filibuster “reform” — intermittently called, over the last decade or so, the “nuclear option” — is something of a moving target. We have consistently maintained that a majority of the Senate may constitutionally curtail the filibuster or leave it as it is. But particular exercises of that power may be deeply unwise or even obnoxious. So it is in the case of the current Democratic initiative.
Details remain murky, but it appears that Harry Reid intends to force the minority to mount a “talking filibuster” on cloture votes, meaning dissenting senators will have to physically occupy the floor to assert their minority rights at all. And he plans to outright end the 60-vote requirement on most procedural matters, including, critically, the motion to begin debate on legislation. This change reduces the minority’s ability to compel the majority to let them offer amendments to bills. Reid has greatly expanded the practice of “filling the tree,” disallowing Republican amendments to protect his caucus from potentially damaging votes. Many Republican filibusters led by Minority Leader Mitch McConnell have been punitive responses to this practice. Freed of such a threat, Reid would have more time to push his agenda and less incentive to allow Republican input.
Reid intends to do all this during a brief window at the start of the next Congress, when, it is argued (with not a little controversy), the Senate can determine its rules of order with a bare majority, and not the two-thirds vote typically required. In contrast with the House, the Senate considers itself a “continuing body,” meaning its rules carry from one Congress to the next. Reid’s stratagem would break radically from that tradition in order to push through the filibuster changes — as many have put it, effectively “breaking the rules to make the rules.”
If the proposed changes sound minor and the means of change arcane, let us simplify things: The Democrats look back at the last four years, in which they fundamentally reshaped the financial and health-care industries — in the latter case without the support of any Republicans, most independents, and some Democrats — and think they didn’t jam enough things through.
The filibuster is considered a threat to the velocity of the progressive agenda. Card check, cap-and-trade, and the like are the proximate ends of Senator Reid’s “reforms.” And should those reforms prove insufficient, he will have executed them in such a way as to set the precedent for their expansion, or for the elimination of the filibuster altogether, with 51 votes.
In 2005, we supported a rules change to end an unprecedented series of filibusters of judicial nominations. Reid’s campaign is not designed to restore the traditions of the Senate, as that effort was. Especially considered in combination with his attack on amendments, it is an assault on the deliberative character of the Senate. As such it deserves resistance — if only by a determined minority.