WASHINGTON -- Leaders of the effort to reform the filibuster in the Senate are pushing forward despite the election outcome, working to gather support within the Democratic caucus while reaching out to Republicans. Sen. Tom Udall (D-N.M.) said that he and a core group of members will canvass their colleagues throughout November and December.
"We'll start the informal discussion in our caucus. Are you for reform? What kind of reform?" Udall told HuffPost.
On the first day of the 112th Congress, Udall said, he will rise and make a motion to establish rules for the session, making the argument that the chamber is entitled by the Constitution to set its own rules. Vice President Joe Biden is then expected to rule -- as vice presidents have done in the past -- that the motion is in order. Senate Republicans will challenge the ruling and Democrats will move to table the objection. Only 50 votes will be needed to table the objection. If Democrats succeed, a debate would then begin over how to reform the rules.
Udall said he and newer Sens. Jeff Merkley (D-Ore.), Jeanne Shaheen (D-N.H.) and Mark Begich (D-Alaska) have been gradually winning support for their effort to reform the rules.
Abolishing the filibuster is far from the only reform under consideration. "You could clear out a lot of the underbrush," said Norm Ornstein, a constitutional scholar who advised Udall on the effort. Currently, after the majority files a cloture motion to break a filibuster, 30 hours of "debate" must happen before the vote. That vote is followed by another 30 hours until the final vote is held, which means a single effort can take a full week of floor time. That time could be reduced or eliminated -- or split in two 15-hour sections divided among the parties, Ornstein said. Or separate rules could exist for executive branch nominees, alleviating the crisis of understaffing that has beset both administrations since at least 2007.
Ornstein said that instead of sticking to the strict number 60 to defeat a filibuster, the threshold could fluctuate depending on the number present. "The other simple thing you could do is switch to three-fifths of those present and voting. They didn't really think about what the consequences of it are" when the rule was originally written, said Ornstein.
Merkley said that requiring the minority to do something -- give a speech, show up, anything -- in order to obstruct Senate business would alter the dynamic. Under current rules, it's the obligation of the majority to affirmatively squash a filibuster rather than the minority to keep it going.
If the minority is made to stand up, said Merkley, "there is a price to be paid in terms of time and energy and visibility if you're going to block" action in the Senate.
Merkley said that the issue has penetrated the public consciousness. "Every time I speak to a group about the need to change the Senate's rules as a result of its paralysis and dysfunction, people applaud. They may not understand how the rules work, but they can understand that they can't get the judicial nominations approved, or advisers on the executive branch. Some particular objection can create a week's delay. That's the big surprise to me during this break, the fact that public understands this in a way I've seen them not understand any process this year. They understand the process is badly broken and needs to be fixed."
Getting Republican support for the effort might not be as hard as it would've been last session. "We have a weakened legislative body. It's in the interest of both Democrats and Republicans who want to get things done" to reform the rules, said Udall.
Democrats hold 53 seats but face an uphill battle in 2012 that could see Republicans claim control of the chamber. Incoming Indiana Republican Dan Coats has said he supports eliminating the filibuster on the motion to proceed, which would grease Senate operations considerably but wouldn't dramatically reduce the power of the minority to obstruct legislation.
If the GOP wants to overturn health care reform or otherwise roll back Democratic gains, eliminating the filibuster would likely be a necessary step. For that reason, senior Democratic senators, who've spent time in the minority, are cautioning against getting rid of the filibuster. It comes down to what you see as the function of the Senate: To defend the gains of the past or to enact further reform.
That the effort has come as far as it has is partly a function of Senate Majority Leader Harry Reid's evolution on the subject.
If there was one crystallizing moment for Reid, when he decided that the Senate was broken and in need of filibuster reform, it came on the early, early morning of December 18th, 2009, when Democrats were pushing through a defense-spending bill that the military said was desperately needed to keep the lights on and the bullets flying. For the better part of the last decade, Democrats had played the unpatriotic punching bag, their loyalty to the country called into question if they so much as asked for some type of condition to come along with the blank check for the undeclared wars.
Hours before the vote, it became clear the GOP was willing to stand in lockstep against "funding for the troops" -- and not some emergency supplemental, either, but the annual spending bill itself -- as part of a strategy to delay an impending vote on the health care bill. The day of the vote, Senator Thad Cochran of Mississippi, the senior Republican on the Appropriations Committee, who had previously supported the bill, backed away. Without Cochran, Democrats were two votes short: Russ Feingold, on principle, votes against war spending bills. At a meeting of the Democratic caucus, colleagues pleaded with the famously stubborn Wisconsin progressive to set aside his objections this one time and vote for cloture. He finally agreed and was rewarded with a standing ovation from fellow members who often chafe at what they see as his grandstanding righteousness. The 60th vote would need to be Bob Byrd, who lay dying at home.
Reid called the vote after midnight, unsure if the senator from West Virginia would have the strength to make it to the chamber in such weather, and worried what toll the effort would have on the man he loved as an older, wiser brother. While the Senate waited on Byrd, three Republicans who wanted to vote for the bill, but who didn't want to be the 60th vote, sat in the GOP cloakroom. If Byrd showed, they would emerge from their toasty confines and vote to support the troops. If Byrd failed, they would vote no, in lockstep with their colleagues, and the measure would fail.
Reid was livid. "Rarely have I seen such brazen irresponsibility and rarely have our nation's citizens received such little regard from their leaders," C-SPAN-watching insomniacs heard him say on the Senate floor. "We're here at 1:00 in the morning because of the Republicans. We could have voted for this bill two days ago. I've even had some Republican senators tell me, regretfully and regrettably, they've admitted to me personally this: They've told me plainly that while they want to support our troops, they fear retribution from their own leaders, retribution from their own leaders. We know senators on this side of the aisle have made commitments to vote for this. That's not exactly what John Kennedy, who was not only president of the United States, but a war hero, who served in this very body, would call a profile in courage."
Byrd, defiantly, arrived, basking in the fist-pumping and back-slapping of his colleagues. Passage assured, several Republicans emerged from the cloakroom to vote aye and cloture was envoked, 63-37. That Republicans had used the filibuster rule for no other purpose than to obstruct the Senate -- Does anyone seriously think Senate Republicans opposed the funding? -- and, in the process, had dragged Byrd out of his deathbed, infuriated Reid. Byrd would die in June, after enduring a seemingly endless string of late-night and early-morning votes.
Reid is a born protege rather than a mentor, a man fiercely loyal to those he looks up to. Byrd was one of those men and to watch him run ragged by the very rules he cherished -- and, in many cases, wrote himself -- was too much for Reid.
Seven weeks later, at a briefing with progressive media on the Hill, Reid announced that he was open to reforming Senate rules.
"The filibuster has been abused. I believe that the Senate should be different than the House and will continue to be different than the House," Reid said. "But we're going to take a look at the filibuster. Next Congress, we're going to take a look at it. We are likely to have to make some changes in it, because the Republicans have abused that just like the spitball was abused in baseball and the four-corner offense was abused in basketball." In an interview with HuffPost several months later, Reid used the same analogy to recommit to reforming the rules.
Reid had a long way to travel to get to where he now is. In his 2008 memoir, "The Good Fight: Hard Lessons from Searchlight to Nevada," Reid calls his opposition to Bill Frist's "nuclear option" -- a threat to eliminate filibusters of judicial nominees -- the greatest fight of his life.
Reid, looking back, warned in his memoir that the proposal was a "Pandora's box." Once opened, he said, "it was just a matter of time before a Senate leader who couldn't get his way on something moved to eliminate the filibuster for regular business as well. And that, simply put, would be the end of the United States Senate."
Reid encouraged Mark Pryor, a Democrat from Arkansas who has conspicuously noted that there is no IQ test needed to be a senator, to work with Republicans to find a compromise. He also enlisted Joe Lieberman, whom he would call on years later to forge a deal on the stimulus, and pressed him to stay involved despite his reservations. Seven Democrats ultimately signed a pact with seven Republicans that would allow some judges to go through but allow the filibuster to be used in "extraordinary" situations. Since the GOP has become the minority, however, entirely ordinary nominees have been filibustered with regularity.
For the moment, the filibuster had been preserved. "Stop smiling so much. Don't gloat," Susan McCue, his longtime aide and confidante, told him as he prepared for a victory-lap press conference.
"There are senators who are institutionalists and there are senators who are not," Reid wrote in his book. Reid is a Senate institutionalist, someone who has come to love the chamber as an end in itself, a living reflection of the wisdom of the founders of this nation. "United States senators can be a self-regarding bunch sometimes, and I include myself in that description, but there will come a time when we will all be gone, and the institutions that we now serve will be run by men and women not yet living, and those institutions will either function well because we've taken care with them, or they will be in disarray and someone else's problem to solve."
That day came sooner than Reid could have foreseen. The Senate has not been well taken care of, and is now Reid's problem to solve. Reid's opposition to changing the rules in 2005 was rooted in his love and respect for the institution; his push to change the rules today is based on that same affection. With the death of his Senate mentor, Bob Byrd, there may be nobody who knows the rules of the Senate as well as Reid. And to see those rules abused has tried him, his colleagues say.
Reid, said Sen. Maria Cantwell (D-Wash.), has "a keen sense that this institution, to work for the betterment of mankind in America, is about coming together and compromising on things and getting things done. So I'm sure he finds it an affront that these shenanigans of just stall, while the economy's stalling, is just an inappropriate response by the other side. I'm sure he's thinking about what you can do to change it if that's their continued response."
Reid isn't afraid to use his knowledge of the rules to outmaneuver rivals. His parliamentary joust with Sen. Tom Coburn (R-Okla.), who was saying no long before it was the cool thing to do, led to his creation of the "Coburn Omnibus," or "Tomnibus," a single bill in 2008 that was a compilation of as many bills stalled by Coburn that Reid could pack together. In an interview with HuffPost, Reid said that he plans to do the same thing with a collection of some of the more than 300 bills that have passed the House but languish in the upper chamber "before the end of the year."
There has been much talk about how broken the Senate is, but the chamber has produced landmark legislation that easily puts it on par with New Deal sessions of the mid-'30s that were capped by a legislative deluge in the mid-'60s. It is more how the chamber has acted, than what it has done, that has Reid pondering improvements. But even if he does push hard to end the filibuster, will the filibuster win? And is Reid genuinely committed?
John Cornyn, the Republican in charge of Senate campaigns in 2010, doesn't think so. "Harry's too much a creature of this institution, where sometimes you're up and sometimes you're down, and you begin to appreciate the rules a little bit more when you're in the minority. I know I have," he said.