Politics & Policy

The Plot to Kill the Filibuster

Senators Harry Reid and Mitch McConnell
And the last-ditch bipartisan effort to save it

Senate Republicans, with Minority Leader Mitch McConnell’s (R., Ky.) blessing and led publicly by Senators Roy Blunt (R., Mo.) and Ron Johnson (R., Wis.), have launched a new-media initiative called “Stop the Nuclear Option,” complete with website, Facebook-share button, and Twitter hashtag suggestions (including #NuclearOption, #PowerGrab, and #CoupAttempt). Its uphill mission is to make the GOP interest-group coalition care about that bit of Senate esoterica that is the filibuster, and the dust-filmed procedure Harry Reid’s Democrats intend to use to destroy it.

As with so much that is digital, the GOP is late to this party. For two years already, a group of lawyers, Greenies, and union honchos have, through a coalition called “Fix the Senate Now,” pushed for major curbs on the filibuster. And they’ve gobbled up most of what oxygen there is in the stuffy room that is public interest in the Senate’s recondite rules. So far ahead of the Republicans’ late efforts are they, in fact, that if you type “stopthenuclearoption.org” (a sensible enough guess for the URL of the GOP webpage) into your browser, you’re redirected to fixthesenatenow.org.

#ad#Through two years and thousands of phone calls’ worth of old-fashioned lobbying, Fix the Senate Now has gained traction with Democrats, to the point that Nancy Pelosi, the White House, and Reid himself endorse their program. That program’s end is the reintroduction of the “talking filibuster” in certain cases, and its complete elimination in others. Its key tactic is the “constitutional” or “nuclear” option, which would allow the Senate to amend its rules at the beginning of the new Congress with 51 votes instead of the 67 traditionally needed. This isn’t the first time a Senate majority has threatened to kill the filibuster process. In 1975, the number of votes needed to invoke cloture — and thus end debate on a measure, and move to a final vote — was lowered from 67 to 60 as a compromise to preserve the filibuster. In 2005, the “Gang of Fourteen” saved the filibuster with a vague, weak handshake agreement. And in 2011, a vaguer, weaker handshake agreement between Reid and McConnell headed off the first Fix-the-Senate-backed coup.

But this time around, the jig could really be up. The other deals relied on institutional loyalists and leadership buy-in, in both parties, to win out over the enthusiasms of the rank and file. But this time, Reid himself is leading the charge to change the rules, and 21 of the 55 members who will caucus with him in the next Senate will have taken their seats in 2009 or later. A lot of these newbies are hot to trot.

“The problem is that most of the people that are talking the loudest about [the nuclear option] have never served in the minority,” says Don “Stew” Stewart, a veteran Senate hand who has headed Leader McConnell’s communications shop since 2006. “They have no idea what it’s like.”

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“They are sitting there thinking, there’s a lot of stuff we can jam through right now,” another senior adviser to Senate Republicans, who asked not to be named, tells me. “Knock the four most conservative members off the 55 incoming Democrats, and think about the sort of legislation you could pass.”

Indeed, the Fix the Senate Now website includes a section called “Consequences of Obstruction,” under which are listed the most prominent recent victims of cloture votes. It’s a murderer’s row of fashionable Democratic fixations — Cap and Trade, the DREAM Act, Card Check, DISCLOSE — all of which would be law if the Senate functioned like the streamlined, supercharged Varsity House of Representatives these Democrats want it to be.

#ad#The streamlined, supercharged part is the other half of the battle. Neutering the filibuster would give the majority party more control of floor time by orders of magnitude, and therefore of the legislative calendar. Rather than have to be strategic about their priorities, the Democrats could push legislation through debate at Ludicrous Speed. And even if they fell short of the 51 votes needed for final passage on a particular bill, they could move on to the next thing lickety-split. Imagine it: taxes, regulation, and stimulus, all before lunch.

Indeed, Republicans got a taste of what such a Senate would be like this week, on the TAG bill (a holdover from the TARP era) — when Reid broke a land-speed record in “filling the tree” (that is, blocking all possible amendments to the bill) and filing for cloture (that is, daring a filibuster) less than two minutes after Republicans voted overwhelmingly to begin debate on the measure.

On the conference call, Senator Johnson called the way Reid constantly fills the tree (he’s done it 107 times so far) “unconscionable” and a major reason for the partisan tit for tat that has ground the Senate to a halt.

“If Senator Reid would allow regular order, I don’t think he’d be faced with the number of cloture votes, the number of filibusters that he is having to deal with,” Johnson said.

So is there any hope? The best chance to break the stalemate, while saving some semblance of the filibuster, and the Senate’s heritage, is a series of informal, back-channel meetings between top Senate Republicans and a group of Democratic old-timers leery of the proposed changes — including, most critically, Rules Committee chairman Chuck Schumer (D., N.Y.), who told Politico that “we’d all like to avert the nuclear option.”

This group of Democrats also includes Mark Pryor (D., Ark.), Carl Levin (D., Mich.), and, according to some, even Dianne Feinstein (D., Calif.). Republicans would need to peel off only a handful of Democrats to prevent the rule change.

While he wouldn’t get into specifics of negotiations, Johnson said that “there are some very-good-faith efforts going on” and that many Democrats “understand our concerns.”

“Stew” Stewart, who saw the last two Mexican standoffs over the filibuster firsthand and lived to tell about it, is optimistic. He thinks the two sides will come to a deal on rules changes and avoid the nuclear option. The key, he says, will be veteran Democrats’ reminding their new colleagues that they won’t always be in the majority.

“I think maybe some of the older guys there are going to start to say ‘Hey, wait a minute, guys, we can change the rules without setting up a precedent in a way that we’re totally screwed in two years.’”

 Daniel Foster is news editor of National Review Online.

Daniel Foster — Daniel Foster is a former news editor of National Review Online.

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