The countdown is on for a major rules confrontation in the Senate beginning Wednesday, the first day of the 112th Congress. Here's a reset of how I see the issues.

1. In the historic 111th Congress, we finally saw the triumph of the complete 60 vote Senate. Nothing passed without 60 votes (and, because minority Senators often fully exerted their rights under Senate rules, many things did not pass despite having more than 60 votes because Senate floor time is scarce). It’s important to realize the context for this development: the filibuster is not Constitutionally mandated, and it has not been employed on most routine legislation and nominations until very recently. 

2. I believe that the current situation is unstable. There simply is no way that majorities, over the long run, will put up with the full 60 vote Senate. I agree with Walter Mondale and others that current Senates can change Senate rules by majority vote, but in particular I disagree with those, such as the New York Times today, who claim this can only be done on the first day of a new Congress. Near as I can tell, there’s a consensus among political scientists who are students of Congress that, one way or another, the only real obstacles to changing the rules by majority vote are political, not legal or Constitutional.

3. I think there are good reasons in both the construction of the Senate and in democratic theory to expect, and to justify, something beyond simply majority party rule in the Senate. So I’d like to see careful reforms to return the Senate to what it had traditionally been—a place where individual Senators retained considerable influence, but without an absolute 60 vote requirement to do anything. My guess is that without careful reform, we’ll eventually get a blunt elimination of the filibuster, and the Senate will then look a lot like the House does now. I believe that would be a loss.

4. From that perspective, I think that the Udall/Merkley proposals that the Senate will probably consider this week are underwhelming at best. The emphasis on sunshine—eliminating secrecy in holds, trying to devise a way to force filibusterers to act publicly—is, in my view, unlikely to really change anything. (Eliminating one procedural step—the possible filibuster on the motion to proceed—is probably a minor gain). 

5. On balance, I do think the reform package as I understand it wouldn’t hurt, and might help a little, even though it wouldn’t be the way I would go. So I suppose I hope it passes. However, the real key here is that Democrats should think of this as a first round of reform, and spend the next couple of years being ready to go with a more comprehensive package should the 2012 elections go their way. Republicans, too, should be ready if they wind up with unified control of Congress and the presidency in 2013, although things being as they are it’s somewhat more likely that the GOP will be slow to act because they will have spent six years defending the filibuster. 

6. Democrats should also be ready to threaten drastic actions if Republicans insist on 60 votes for nominations in the 112th Congress, and then have the party unity to block numerous confirmations. I don’t want the Democrats to actually go full nuclear and unilaterally eliminate minority party rights—but that’s the only meaningful weapon they have to prevent chaos. Remember, we’ve never had the combination of a true 60 vote Senate along with a minority party that can easily produce 41 votes for almost everything. In legislation, it’s always possible to find compromises (and given the Democrat in the White House and Republican control of the House, we’re going to get compromises whatever the Senate does with its rules). But there’s a fair chance that Republicans are simply going to shut judicial nominations down, and play havoc with executive branch nominations, and the majority Democrats need to be prepared to fight back by threatening to use their ultimate weapon.

OK, I think that’s enough to start with. I suppose I’ll finish up by referring those who are interested and new around here to what I think rules reform in the Senate should look like.