The Dysfunctional Senate

The Coming Filibuster War

11.26.12 11:39 AM ET

Reasonably thorough Politico piece today on Harry Reid's plans for filibuster reform. Forget the fiscal cliff. The filibuster reform fight, if pursued, could be far bigger and way, way, way more acrimonious.

The situation here is that nothing is more needed than filibuster reform (not quite outright elimination), so the Democrats are absolutely in the right. But it's hard for me to see how they can win the spin battle on this one, for two reasons I'll explain below. So in sum: a righteous cause, but very inpropitious circumstances.

First, what Reid isn't proposing. He's not proposing eliminating the filibuster. He's proposing limiting it, and even then, not really all that dramatically. The rules are very complicated, but in essence, the Senate minority can filibuster a piece of legislation at a few different steps in the process. Reid would seek to end filibusters at the beginning of the process, on so-called motions to proceed, when a bill is first introduced.

The most common filibuster threat, the one that gets the most attention, comes later in the process, as a bill moves toward final vote. That's when 60 votes are required to end debate and schedule a vote for final passage. Reid wouldn't change that.

He's also proposing one more change. The old days of the endless floor speech to carry out a filibuster are long gone. Because senators have to spend so much time doing other things (raising money, basically), they agreed some years ago that they shouldn't have to spend precious time on the floor. They could just say, "I plan to filibuster this bill," and it would have the same effect. Reid wants to end that and make filibusterers occupy the floor. Yes, the Senate does own 100 cots, and it has the staff to wheel them out if needed.

Neither of these would eliminate minority rights. In fact, I'm not sure these changes would have very much effect at all. Probably the minority would have to pick and choose its fights a little more carefully, but anything they really wanted to block, they could still block by not agreeing to cut off debate.

But if the proposed changes aren't that dramatic, the manner of changing the rules would be plenty dramatic indeed, and that's where the tension and acrimony would come in. Here's what the Democrats would have to do to put these changes into effect.

Every time a new Senate reconvenes in January of odd years (years after an election), the Senate has some procedural housekeeping to do, one part of which is to declare itself a "continuing body," meaning that all the old rules carry over from the previous Senate. Now, to make this change, Democrats would have to alter that tradition and declare next January's Senate a "new body," meaning that all the old rules were not automatically in effect. Under those circumstances and only under those circumstances, changes to the filibuster rules can be passed with a simple majority of 51.

Given that next year's Senate will have 55 Democrats, including a handful of new and liberal-leaning members, they'll likely have those 51 votes. But imagine the storm. This brings us to the two reasons this may be really hard to do under current circumstances: first, the fiscal cliff negotiations--Democrats will be accused of risking a deal for the sake of doing this instead; second, the GOP will be able to haul out all sorts of quotes from Democrats when they were in the minority--including from Barack Obama--about how unfair this sort of thing is.

Filibustering has gotten completely out of hand, and yes, Republicans are bigger offenders numerically, it's just a fact. Especially since Obama has been president. It's a virtual tyranny of the minority in the Senate right now, when 41 senators have more power than 59, which is the case, since 41 can band together to block anything.  It's crazy and totally undemocratic. And please, don't trot out the old teacup and saucer quote. George Washington did not mean what we have today, which is completely dysfunctional.

But if Democrats are going to do this come January, they need to start laying the p.r. groundwork now in two ways. First, they need to explain how out of hand things have gotten and explain to the American people that 41 have more power than 59, which no regular person would think makes any sense at all. And second, they have to say yep, we understand that what we're doing will affect us adversely when we're in the minority, but things have gotten so bad that we accept that.

Chances are they'd be taking a hit either way. The proposed changes, which won't end the filibuster, may not even quite be worth the trouble. But you do have to start somewhere, and reform takes time.