By Ruth Marcus
The junior Democratic senators are fed up, understandably so, with the institution’s glacial pace. Liberal activists are demanding filibuster reform—now.
They should be careful what they wish for.
The reforms under discussion make complete sense. But they also wouldn’t do much to address the fundamental complaint about the filibuster: that it effectively imposes a supermajority requirement for any Senate action. And as a pure matter of partisan politics, these changes could end up causing more problems for Democrats than they would solve, now and in the future.
The three-part proposal by New Mexico Sen. Tom Udall and a number of his colleagues would prohibit use of the filibuster on the initial motion to begin debate on a measure. Instead, opponents would be able to filibuster only the final package. Delays would be shorter but the ultimate 60-vote hurdle would remain. The plan would also eliminate secret holds on nominations—an overdue move but not one that will end the logjam of blocked nominations. And it would require proponents of the filibuster to actually remain on the floor during debate.
So far so good—except that the precedent of fiddling with the rules at the start of each new Congress introduces the opportunity for more mischief the next time around. Senate rules require a two-thirds vote—67 senators—to change the rules.
There is a way around this, but it opens a parliamentary Pandora’s box. If Democrats succeed in establishing that the rules are open for change by majority vote, what happens if Republicans win a Senate majority in 2012? Democrats have 23 seats to defend that year compared to 10 for Republicans. Anyone want to bet the mortgage money on the outcome?
Imagine the start of the 113th Congress in January 2013. House Speaker John Boehner’s first act, once again, is to repeal what he calls “Obamacare.” Senate Majority Leader Mitch McConnell, invoking the Udall precedent, moves to change the rules to eliminate the filibuster, and his caucus—over howls from the Democratic minority—agrees. The Republican Senate then votes to repeal the health care bill, which is promptly signed ... by a President Palin.
You might think this is far-fetched: Would Republicans, knowing that majority status is fleeting, really go so far as to abolish the filibuster? Maybe not, but Democrats’ memories can’t be so short that they have forgotten the “nuclear option” debate over judicial filibusters in 2005.
Then it was Republicans who argued that the filibuster rules were being abused, and Democrats who clung to the device as a necessary protection against Republican overreaching. What kind of Supreme Court justice is a President Palin going to nominate without the chastening discipline of a filibuster hanging over her? I’d rather not find out.
The danger for Democrats in fiddling with the filibuster is also more immediate. The filibuster could end up being a useful Democratic tool to block legislation that passes the Republican-controlled House and could, with a few Democratic defections, garner a bare majority in the Senate.
The current proposals don’t go so far as to allow that. But one little-noticed aspect of the Udall plan is that, as part of eliminating the filibuster on the motion to begin debate, it would guarantee Republicans more opportunity to offer amendments. Sounds fair—except that in practice more amendments translate into more chances to force endangered Democratic senators to take unpleasant votes. In short: more fodder for 30-second campaign ads.
Frustration with the current state of play is real. Every returning Democratic senator signed a letter last month to Majority Leader Harry Reid urging him “to take steps to bring these abuses of our rules to an end.”
But my reporting indicates that the Udall forces lack a majority in favor of changing the rules by majority vote—which lessens the pressure on McConnell and Senate Republicans to reach a negotiated accommodation, the best possible solution.
So here are two possible results, neither particularly attractive for Democrats: The Udall forces, over the coming month, manage to assemble a majority in favor of the plan, which would create the risks described above without improving the Senate all that much. Or they fail, leaving a stirred-up, dissatisfied base and a still-dysfunctional Senate.
I agree: The filibuster rules need changing. But this is sounding more and more like a Democratic plan that only a Republican could love.
Ruth Marcus’ e-mail address is marcusr(at symbol)washpost.com.
© 2010, Washington Post Writers Group