Here’s a copy of the filibuster reform resolution that Senate Democrats will introduce later today, sent over by an aide to Tom Udall, one of the key Senators driving this campaign.
While the broad outlines of the proposal were already public, the details were being debated by Senators Udall, Jeff Merkley, Tom Harkin and Amy Klobuchar until as late as yesterday. The actual resolution is important, because it will serve as a jumping off point for the debate over reform that will unfold over the next couple of weeks.
Here’s a summary of the main items, also provided by a Udall aide:
Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed
Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.
Eliminates Secret Holds
Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.
Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority
Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.
This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.
Talking Filibuster: Ensures Real Debate
Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.
Expedite Nominations: Reduce Post-Cloture Time
Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.
Daniel Foster at The Corner:
There’s a lot to like there. I’ve long favored the “talking filibuster” model since it is a) the way the rule was originally designed and b) is a natural check on abuse. No major GOP filibuster of the last four years — think Obamacare — would have gone any differently under a talking filibuster; when the stakes are high enough the minority should be able to rouse a rotation of senators to hold the floor. The end of the filibuster on motions to proceed I’m more ambivalent about. There is certainly an element on commonsense logic here. But filibustering motions to proceed has long been a tool to force the majority to give the minority amendments as a condition for allowing debate to proceed (more on that below). I like that, and I favor a slow Senate in general, just not a glacial one. I’d have to think more about the balance here. Same goes for the limitation on post-cloture debate for nominees.
Making holds transparent just seems like an undeniably good idea, and I suspect it would get broad bipartisan support if brought up as a standalone.
And guaranteeing the minority three germane amendments to all bills could also be really good. For one thing, it probably favors Republicans more than Democrats, since the Harry Reids of the world block Republican amendments not just because they delay final passage, but because they often actually have a chance of passing. That is, it is a feature of our political landscape that there will almost always be more Ben Nelsons than Olympia Snowes — more Democrats willing to vote with Republicans than vice versa. Again, think about how this could have changed the way Obamacare played out. My concern would be that majorities and their parliamentarian gimps would find a way to define “germane” down to nothing. I’d have to look into it.
The threshold worry is that the GOP is still in the minority and therefore stands to lose some leverage if this goes through. True, but that’s meaningless with a Republican House. Anything nutty that Reid passes will die on Boehner’s desk. Think ahead to 2012, when the House will almost certainly stay red and a slew of red-state Senate Democrats will be fighting for their political lives in November. That chamber could flip to the GOP too. If filibuster reform passes now, thereby setting a precedent for the next Congress, and Obama loses his own reelection bid, then the filibuster would be the Democrats’ last means of preventing the repeal of ObamaCare. They could still do it if they’re willing to talk — and talk and talk and talk until the GOP gives up — but this package would weaken their hand. Plan ahead!
As for the particulars, please do read Foster’s thoughtful post. I think he’s right that the “talking filibuster” would be a big enough weapon for a committed minority to kill important legislation on the floor (Democrats had better hope so per my point above about ObamaCare repeal). And the GOP has complained for ages that Reid hogs all the amendment opportunities for Democrats, effectively leaving the party with no options on a bad bill except to filibuster. McConnell grumbled about that in an op-ed just this morning, in fact; under this new package, he’d be guaranteed at least three chances to tempt the Testers and Pryors and Nelsons of the world into siding with the GOP on amendments that could potentially kill the underlying bill. In fact, Foster thinks that because there are likely to be more centrist Democrats in the chamber than centrist Republicans, the ability to dangle amendments at fencesitters in the other caucus would favor the GOP permanently. I’m not so sure about that — between Brown, Snowe, Collins, Murkowski, Kirk and whoever’s elected in 2012, there are actually plenty of RINOs there with maybe more to come — but it’s worth considering.
I think this analysis is largely correct. This proposal isn’t the elimination of the filibuster that pundits like Ezra Klein and Matthew Yglesias have been advocating for the better part of it year, so it doesn’t totally dilute the rights of the Senate minority to have their voice heard in debate. Instead, these reforms propose doing things like making Senators who want to block debate on a bill stand up and do so publicly, whether by holding the floor via a filibuster, or by eliminating the secret hold. None of these detracts from the rights, or powers, of the minority to have their voices heard, but it does mandate transparency, and to the extent that transparency means that Senators will be less likely to block legislation just for the hell of it, or just to appease their base. It would also seem to encourage more actual debate, which strikes me as a good thing.
Unfortunately, the entire reform effort seems to be in danger
Dan Foster at the National Review and AllahPundit at HotAir.com both agree: There’s really nothing for minority parties to fear in the Democrats’ proposed filibuster reforms. And they’re right about that.
Compare the provisions that say minorities can’t do something to those that say they can do something. In the “can’t” category is (1) can’t uphold a filibuster without having people debating the bill on the floor, (2) can’t place a hold on a bill without disclosing that you’ve done so and (3) can’t filibuster a motion to proceed.
If you read that closely, there’s no basic tool Senate minorities have now that they won’t have if these reforms pass: They can still filibuster bills, they can still place holds. I cannot think of a single piece of legislation that would’ve ended differently in the presence of these rules.
Conversely, the reform package also says minorities can do something: They get to offer at least three germane amendments on every single bill. The majority often doesn’t let the minority do this because the amendments, if sufficiently well targeted, can split the majority party, adding something that, say, conservative Democrats can’t vote against, but liberal Democrats can’t stand to see pass. I can think of a few bills where this power would’ve, at the least, changed the makeup of the final legislation.
For ever-hopeful liberal bloggers, Senate Majority Leader Harry Reid’s introduction of a filibuster reform measure yesterday was a sure sign, yes indeed, that the Democrats are serious about filibuster reform. But are they?
Reid could have staged a vote, but instead, as I predicted, that will have to wait until after the Senate returns on January 24. (Only in Congress do you show up for the first day of work and then go on vacation for three weeks). A senior Senate adviser scoffed that if Reid had the votes, there’d be no delay. The only reason to put this off is to come up with an alternative that will allow the Democrats to withdraw the “nuclear option” gracefully.
It seems some Democrats have figured out the downside of lessening the rights of the minority. The Hill reports:
A senior Senate Democratic aide said some of the younger Democratic senators are having second thoughts about filibuster reform because they expect to be in the minority at some point in their careers.
“Believe me, when you’re in the minority, you want the filibuster,” said the aide.