If you had to pick two of these guys to reform the filibuster, and one to retire from the Senate, who would you pick? So, there's now a bipartisan "filibuster reform" proposal on the table, backed by Senators Carl Levin (D-MI) and John McCain (R-AZ). What would it do, and what does it mean? Well, I'm sure I won't surprise anybody by answering, "not much" to the first question. But the second answer is much more important. It means that the Senators who really wanted to resist all change are beginning to see the writing on the wall, with respect to the threat to adopt new rules by majority vote in the next Congress. If you don't take the possibility that there are 51 votes available to adopt new rules by a simple majority vote next month, then you don't even bother coming up with a compromise alternative. So in that respect, kudos to those pushing for reform! It's a real pleasure to see Democrats organized enough to be able to get their way in the United States Senate, for a change!
But, if the votes are there, what good would a compromise proposal be, bipartisan or otherwise? The answer, of course, is that the votes haven't been cast yet, and Senators are still subject to persuasion. So it's absolutely within the realm of possibility that Senators may see something they prefer in the compromise proposal, as compared to what's been floated so far.
Given what's in the new proposal, though, I don't think that's terribly likely, nor do I think it's wise.
The first big difference between previous proposals and this one is that this would not actually change the standing rules of the Senate. Instead, it would create a "standing order of the Senate," designed to sunset with the 113th Congress. That by itself is not such a big deal. If adopted, it would be enforceable on the floor just like any of the standing rules. But remember that some of the reform-minded Senators are in this for more than just filibuster reform. Above and beyond that very important goal, they genuinely believe that Senators ought to vote directly on the adoption (or continuation) of their rules with some regularity, rather than simply assuming that they continue in force from one Congress to the next, as Rule V purports to be the case. Those Senators are not likely to be enamored of a compromise that drops this important aspect of rules reform.
The second big difference is that standing orders of the Senate are either adopted by unanimous consent, or with the adoption of a resolution spelling out their terms. And while it's entirely possible that an agreement could be worked out by which the parties agree to allow it through by unanimous consent, I'd certainly have to take that as a sign that we got considerably less real reform than we might have been able to get if the reformers had been a little more aggressive. Of course, it's when you start moving into territory where some part of the proposal might actually draw objection that you realize that a compromise embodied in a resolution brought to the floor for a vote would be... subject to a filibuster.
Now, a compromise that's got widespread support might very well get past a filibuster with relative ease. But every filibuster carries risks, and over the years, many filibuster reform proposals have been killed outright once they fell victim to a filibuster. The "constitutional option" has come to be used as simple shorthand for a procedure that allows the Senate to change its rules by a simple majority vote, but it is in fact a very complex set of parliamentary maneuvers, carefully developed by previous reformers through years of trial and error, to put the Senate on a footing where a single vote can both end debate on proposed reforms and preclude any intervening motions that might give rise to yet another debate, and therefore another filibuster. It is only at that point when the possibility for all further delay has been extinguished that the Senate is in a position that guarantees a majority the ability to work its will. Previous reformers have learned through hard experience that leaving the door open to a filibuster is the kiss of death. And absent an iron-clad agreement for unanimous consent, a proposed standing order is always going to be subject to that threat.
So while there is nothing inherently wrong or weak about adopting changes in the form of a standing order, and the order itself isn't any less enforceable than a standing rule, the procedural problem is that the standing order route offers no guaranteed path to a simple up-or-down vote on the substance. While there are ways to get there, they rely either on taking the other side's word on an agreement to get to that vote (or that they'll grant unanimous consent), or on accepting the word of 60+ Senators that they'll vote for cloture on any and all attempts to filibuster the adoption of the resolution embodying the standing order. And if you're a believer in the finite nature of that special window of opportunity that the logic of the constitutional option is said to establish at the beginning of a new Congress, then you can't afford to take any risk at all that any of the steps toward adoption of the standing order could be disrupted by a filibuster, lest the window be deemed closed by the very act of acknowledging the continuing force of Rule XXII, the cloture rule.
That brings us to a third major difference between the standing order route and the rules change route. Rules changes, once adopted, are their own enforcement mechanism. That is, the fact that they're rules gives them their own force. Standing orders, it's true, can be enforced like rules. At least, once they're adopted. And that's where the problem arises. As I've just explained, the rules change route, via the constitutional option, follows a prescribed procedure designed to eliminate the possibility of being derailed by a filibuster along the way to rules change. The standing order route depends on deal-making to get there. And where a deal can be made, it can also be broken. Minority Leader Mitch McConnell has found himself surprised in the past by members of his own Republican conference objecting to deals to which he thought he'd already gotten their consent, and that can be a dangerous thing in a delicate situation like this.
The bipartisan group working on this plan, one would have to guess, probably see parallels between themselves and the "Gang of 14" that defused the 2005 "nuclear option" confrontation. But often forgotten about the Gang of 14's deal is the fact that it actually had built right into it the threat to resort to the very same "nuclear option" it sought to avoid, if the Republican signatories felt their Democratic counterparts weren't holding up their end of the bargain. That was the enforcement mechanism the parties gave themselves. The Republicans, though they preferred not to change the rules, reserved that right for themselves. And that was what would hold the Democrats to their pledge to support cloture motions on judicial nominations (except in "extraordinary circumstances") for the balance of the 109th Congress. Although a standing order, once adopted, is enforceable just like a rule, it's during the dangerous process of turning a mere proposal into an actual order that this latest proposal is most vulnerable. And while the same danger applies to an actual rules change, the constitutional option offers its own protection for the process, built right in to the carefully choreographed procedure. What is the protection for the process of adopting a standing order? Nothing. It's a handshake deal. Unless, of course, the parties to the deal acknowledge that the majority reserves its right to resort to the constitutional option if things should go awry.
Right now, the deal on the table evidences none of that. Not only that, but with just four Democrats and four Republicans currently parties to whatever deal may be in the works, this new Gang doesn't even deliver enough votes to guarantee cloture on the resolution that would establish their proposed standing order. Fifty-five Senators are expected to vote with the Democratic caucus at the beginning of the 113th Congress. Even if you get every one of them on board, adding the new Gang's Republican four makes just 59 votes. Not enough to invoke cloture if anyone decides to go for broke and filibuster the proposed order. Sure, that can change, and additional support for the proposal from among Republican ranks might even be considered quite likely. But it's not there yet, and if the past history of filibuster reform is any guide, there are a lot of dangerous stretches along the parliamentary road from proposal to done deal.
And those are just the procedural objections. The substance of the proposal doesn't give much comfort, either. But I'll comb through that in a later post.
In the meantime, there's a better path to reform on the table, and it's the strength of that better path that's driving Republicans to try to negotiate alternatives. The stronger the public support for real rules reform, the closer Republicans will have to come to it in order not to find themselves shut out of shaping the Senate's future. Help give your Senators the upper hand. Send your Senator a message in support of real filibuster reform.
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