Weakened Filibuster Reform Plan Unveiled In Congress By John McCain, Carl Levin

WASHINGTON -- In a bid to head off the "nuclear option" for changing the Senate filibuster, a bipartisan group of senators Friday offered watered-down reforms they suggested would restore Washington to a place the fabled Mr. Smith of the 1939 movie would recognize.

"What we're proposing on a bipartisan basis is a way to end the major sources of gridlock around here," said Sen. Carl Levin (D-Mich.), one of eight senators who crafted the proposal that would give the Senate two new ways to end filibusters.

The filibuster has been used nearly 400 times in the 112th Congress, which will go down as the least productive since the 1940s. The classic filibuster -- made famous in the film "Mr. Smith Goes to Washington" starring Jimmy Stewart -- involves a lawmaker taking to the floor and doggedly making his point.

In the modern Senate, the invoking of cloture to stop such debating requires 60 votes. But it's been decades since the objecting senator has had to take floor.

The proposal by Levin and Sens. John McCain (R-Ariz.), Chuck Schumer (D-N.Y.), Lamar Alexander (R-Tenn.), Ben Cardin (D-Md.), John Barrasso (R-Wyo.), Mark Pryor (D-Ark.) and Jon Kyl (R-Ariz.), doesn't propose a new rule requiring a talking filibuster, but a document they distributed explaining their proposal said the leaders of the two parties would require it.

"If a senator wants to block legislation, he or she should go to the floor of the Senate, and be there for that objection," said McCain.

"You must talk," said Levin, adding that no new rule is needed because the talking requirement has never actually been dropped. It's only been waived by senators as a courtesy, McCain and Levin said.

The proposal would block filibusters on starting debates, on going to conference with the House, and on some presidential nominations. Two new methods would be allowed for the majority leader to stop filibusters of motions to begin debate of regular bills. One would let the leader call a vote on proceeding, with just four amendments allowed. The other involves the minority and majority leaders signing a motion to proceed with five other senators.

The proposals would only last two years.

Proponents for stronger reform were not impressed, and said the changes would do little or nothing to change obstruction in the chamber. And, they argued, the changes would not bring back the talking filibuster.

"It shifts the paralysis from the motion to proceed onto the early amendments," said Sen. Jeff Merkley (D-Ore.). "The heart of the current paralysis, the silent, secret filibuster, is not addressed by the Levin-McCain proposal."

Merkley pointed to historical filibuster battles to note that in order for the Senate to keep a filibustering lawmaker on the floor and talking, 51 other senators -- or a quorum of the Senate -- also has to be on hand.

"What this does is it allows bills to be killed with no evidence that it's happening in front of the American people or on the floor of the Senate," Merkley said.

"The talking filibuster goes right to the heart of that. It doesn't eliminate the 60-vote, but it makes sure that everybody knows who's obstructing, and that's where the accountability is," said Sen. Tom Udall (D-N.M.).

McCain and Levin stressed that their proposals still needed to be agreed upon by the leaders. They would be enacted as a standing order, which requires a 60-vote threshold.

Their idea in pushing a milder reform is to head off not just the efforts of senators such as Merkley and Udall, but to avoid the so-called nuclear option, where the Senate can change rules with just 51 votes at the start of the session, instead of the usual 67 votes needed to change rules. Supporters of the 51-vote change call it the constitutional option, since it is allowed, if not used.

McCain and Levin, however, see it as breaking the rules, and fundamentally changing the Senate to be more like the House.

"A number of us are very deeply troubled by the idea that we would do something in violation of the rules that provide a two-thirds vote to change the rules," Levin said.

"Hopefully, this will prevent us from going over a Senate cliff as of Jan. 3," McCain said.

UPDATE: Dec. 29, 3:25 p.m. -- A broad coalition of nearly 50 progressive and labor organizations that have been activily lobbying for filibuster reform rejected the Levin-McCain proposal out of hand, calling it a "recipe for continued Senate gridlock." In a statement, they outlined the following concerns:

Lacks Transparency and Accountability: Instead of the “talking filibuster,” a reform that would force those wishing to block legislation make themselves public to explain their objection, today’s proposal would provide no transparency and accountability to obstructionists, continuing to allow for a silent filibuster of legislation. And it would require another “gentlemen’s agreement” between the two party leaders to promise to not object on behalf of any members of their caucus. Recent history has demonstrated the failure of such agreements in the Senate.

Would Still Provide Multiple Chances to Filibuster Legislation: The Fix the SenateNow coalition has called for eliminating filibusters on the motion to proceed – a reform that along with eliminating the filibuster on multiple motions to go to conference would leave one opportunity to filibuster a bill during the legislative cycle, instead of the current four. While the package offered by the eight Senators would combine the current three motions needed to go to conference into one motion, that one motion would still require a cloture vote. Further, the proposal would not permanently make the motion to proceed a non-debatable motion.

Obstructionist Status Quo for Many Executive Branch and Judicial Nominees: The reform package does not sufficiently streamline the executive branch or judicial nominations process for all nominations, as it would only reduce post-cloture debate time for select nominees. Given the judicial vacancies crisis and the continued obstruction of qualified and non-controversial nominees, this proposal falls well short of the necessary reforms. For example, while it would reduce post-cloture debate time for district court nominees, it would not do so for circuit court nominees.

Instead of today’s watered-down offering, which is more status quo than a serious reform package, the Senate should move forward on the following:

Eliminate the ability to filibuster the motion to proceed;
Require that those wishing to block legislation or nominations take the floor and actually filibuster—i.e., mandating “talking filibusters”;
Assert that 41 Senators must affirmatively vote to continue debate rather than forcing 60 Senators to vote to end debate; and,
Streamline the confirmation process for all nominees by eliminating the currently required 30 hours of post cloture debate on a nominee to zero or at a minimum no more than 2 hours.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.