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Tally another loss for filibuster reform

By Ezra Klein
The Washington Post

Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell have come to a deal on filibuster reform. The deal is this: The filibuster will not be reformed. But the way the Senate moves to consider new legislation and most nominees will be.

“I’m not personally, at this stage, ready to get rid of the 60-vote threshold,” Reid, D-Nev., said Wednesday, referring to the number of votes needed to halt a filibuster. “With the history of the Senate, we have to understand the Senate isn’t and shouldn’t be like the House.”

What will be reformed is how the Senate moves to consider new legislation, the process by which all nominees – except Cabinet-level appointments and Supreme Court nominations – are considered, and the number of times the filibuster can be used against a conference report.

But even those reforms don’t go as far as they might. Take the changes to the motion to proceed, by which the Senate moves to consider a new bill. Reid seemed genuinely outraged over the way the process has bogged down in recent years.

But the deal Reid struck with McConnell doesn’t end the filibuster against the motion to proceed. Rather, it creates two new pathways for moving to a new bill. In one, the majority leader can, with the agreement of the minority leader and seven senators from each party, sidestep the filibuster when moving to a new bill. In the other, the majority leader can short-circuit the filibuster against moving to a new bill as long as he allows the minority party to offer two germane amendments that also can’t be filibustered. Note that in all cases, the minority can still filibuster the bill itself.

A pro-reform aide I spoke to was agog. “Right now, you have to negotiate with McConnell to get on a bill,” he said. “Tomorrow, if this passes, you still need to negotiate with McConnell to get on a bill. It changes nothing on how we move forward.”

The agreement also limits the number of times you can filibuster a bill after both the House and the Senate have agreed to it, and it limits the post-filibuster period on most nominations from 30 hours to two hours. Both reforms will speed the Senate’s pace a bit but neither is anything close to a game-changer. The question among some reformers, then, is what happened?

Last May, Reid shocked observers when he went to the Senate floor and apologized to Democratic Sens. Jeff Merkley of Oregon and Tom Udall of New Mexico for blocking their efforts to weaken the filibuster. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t,” Reid said then. “And they were right. The rest of us were wrong – or most of us, anyway. What a shame . . . If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”

Reformers think Reid changed his mind again in December, after a series of amendments to the defense authorization bill went awry and he began to worry that a talking filibuster, if not properly managed on the floor, could actually mean no filibuster at all in some cases. When I asked him why he didn’t go for Merkley’s talking filibuster proposal, Reid said he’d concluded that it actually does get rid of the 60-vote threshold. He was, instead, pursuing a gentleman’s agreement with McConnell to encourage more talking filibusters.

A second explanation for Reid’s early enthusiasm for reform might be that Reid needed to persuade McConnell to strike a deal and that the only way to do that was to scare him a bit. “Whenever you change the rules here,” Reid said, “you have to show the other side you can change them with 51 votes.” It’s the fear of the partisan reforms, in other words, that leads to bipartisan reforms.

I asked Reid whether he thought the filibuster could survive in a Senate where, in truth, the majority leader, alongside 49 other senators and the vice president, could change any rule they wanted.

“The only way we’ll get rid of the filibuster is if it continues to be abused,” he said. “Hopefully, what we’ll do here will stop some of the abuse, but what will happen if the minority continues to abuse the rules is we won’t get rid of the filibuster, but we’ll go to something like what (Sen. Tom) Harkin has pushed, where one vote is at 57, and then another vote is at 55.”

But for now, Republicans have little to fear. The filibuster is safe. Even filibusters against the motion to proceed are safe. And filibuster reformers have lost once again.


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