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The Filibuster and "The Fermata"

To most of us, today is Jan. 22, but in the Senate it's Jan. 3. That's because Senate Majority Leader Harry Reid has extended indefinitely the first legislative day of the 113th U.S. Congress, which began on Jan. 3. It's a little bit like that Nicholson Baker novel The Fermata, except that instead of stopping time to jerk off, Reid is stopping time to consider potential changes to the filibuster. Which may, sadly, amount to the same thing.

Senators Jeff Merkley and Tom Udall lead a group of Democrats who want to require that all filibusters be the "talking" kind. This would be meaningful reform. "It would work like this," Merkley said in a memo to Senate colleagues:

If the Senate held a cloture vote to end debate, and a majority of senators voted to end debate, but not 60, the Senate would enter a period of  "extended debate." In short, once the Senate has voted for additional debate, senators who feel that additional debate is necessary would need to make sure that at least one senator is on the floor presenting his or her arguments.
If, at any time during the period of extended debate, no senator were present to speak to the bill, then the presiding officer of the Senate would rule that the period of extended debate is over. The Majority Leader would then schedule a simple majority cloture vote on the bill.

This was how the filibuster worked before rule changes enacted in the 1970s allowed senators to filibuster legislation without actually talking themselves hoarse on the Senate floor. Restoring the talking filibuster is a less desirable option than eliminating the filibuster altogether (as the House of Representatives did in the 19th century), but it's still worth doing, because it would make it significantly more difficult to block legislation by filibuster.

Reid, alas, is cool to Merkley and Udall's proposal. He has talked up an alternative proposal that would eliminate filibusters on certain procedural votes but leave in place the current passive filibuster option for final passage of any bill. He's also considering a proposal that would require the filibustering minority to demonstrate on the Senate floor that it has the necessary 41 votes to filibuster. It's hard to see how either of these changes would pare back obstruction by the minority party in any meaningful way. 

Changing the filibuster rule would require a Senate vote, and there's a general sense (though not an absolute consensus) that any vote to alter Senate rules must occur on the first day of a new Congress. That's why it's still "Jan. 3." Merkley and Udall favor changing the filibuster rule by simple majority if necessary. This is what they call the "constitutional option" and what opponents call the "nuclear option." It's controversial because it departs from current Senate rules, which require a two-thirds majority to change any rule. The theory behind the majority rule-change vote is that "current" Senate rules can't carry over from one Congress to another; they must be reaffirmed by the new Congress, and when that happens the Senate may alter them. 

Reid isn't at all sure he wants to impose even his own milquetoast filibuster changes by nuclear option. I kind of see his point. If you're going to provoke the Republican minority by upending existing procedures, you hate to create all that ill will if the new procedures are of little practical consequence. On the other hand, establishing the precedent of changing Senate rules by simple majority vote could prove handy down the road when a bolder rule change is voted on—say, re-establishment of the talking filibuster, or eliminating the filibuster altogether. Obviously Democrats would hope that next rule change would be proposed while Democrats were in the majority, though in the long run the Democrats would be bound to end up in the minority someday, and when they did they'd have to accept diminished power to obstruct the (Republican) majority. (I think reform is worth it.)

Further complicating matters—and potentially rendering the whole exercise onanistic—Reid isn't sure he wants to support his own weak reform at all. He'd rather work out some sort of deal with Senate Minority Leader Mitch McConnell, who doesn't sound like he wants any rule change. ("The Senate isn't functioning as it should. And it has nothing to do with a process that has served us well for a very long time.") Reid will keep trying to reach a compromise for at least the next several days, possibly forestalling the advent of February (including, ironically, Groundhog Day).

The trouble with trying to work out a deal with McConnell is that Reid did that last time and came to regret it. As I've noted previously, the ratio of cloture votes (a rough proxy for filibusters) to bills passed nearly doubled during the 112th Congress. So why would Reid go down that road again? Well, it's always been unclear just how badly Reid really wants to change rules governing the filibuster. After then-Senate Majority Leader Bill Frist threatened to change filibuster rules using the nuclear option in 2005, Reid went, well, nuclear. Here's what he wrote about the attempt in his 2008 book, The Good Fight:

They were threatening to change the Senate so fundamentally that it would never be the same again. In a fit of partisan fury, they were trying to blow up the Senate. Senate rules can only be changed by a two-thirds vote of the Senate, or sixty-seven senators. The Republicans were going to do it illegally and with a simple majority, or fifty-one. Vice President Cheney was prepared to overrule the Senate parliamentarian. Future generations be damned.

The man who wrote those words will likely hold his nose and accept pretty much any cosmetic "compromise" that McConnell offers him.

Update, Jan. 23: I may have been too dismissive of the 41-vote option. Ezra Klein makes this scheme (which Slate's Dave Weigel attributes to Sen. Al Franken, D.-Minn.) sound like it might have some teeth after all: "If the minority only had 38 votes present in the room, the filibuster would end. It also means the minority could be forced to muster all their people to vote at times of the majority leader’s choosing: say, 3 a.m. on a Saturday." A talking filibuster would still be better, but the 41-vote option isn't nothing.