Democrats are poised to change the Senate’s filibuster rules and Republicans are freaking out, but it’s all much ado about nothing.
Well, not quite nothing. Majority Leader Harry Reid hasn’t detailed his precise reform proposal yet, but it’s likely to feature two main components: 1) Eliminating filibusters on the motion to proceed – meaning that it would take a simple majority vote to bring a bill to the floor for debate; and 2) forcing senators who want to block legislation to engage in actual talking filibusters.
But in an exchange on the Senate floor with an exercised Mitch McConnell Monday afternoon, Reid went out of his way to stress that “we’re not trying to get rid of the filibuster.” Which is why life in the Senate as we’ve come to know it isn’t going to suddenly change in January when Democrats use the “constitutional option” to change the filibuster rules with a simple majority vote.
The need for reform is obvious. Filibustering has evolved over the years in a way that has rendered the Senate utterly dysfunctional. It used to be the tactic of last resort for a committed minority, used only on major legislation; today it’s a routine tool of obstruction. Both parties deserve some blame for this transformation, but it’s Republicans who have taken the practice to new heights in the Obama era. Functionally, it now takes 60 votes to pass any meaningful legislation in the Senate.
This is why Reid, long a Senate traditionalist with little appetite for reform, has changed his tune and now wants to tinker with the filibuster. And it’s why the reform cause has been taken up by liberal activists, why the incoming freshman class is filled with reformers, and why just about every Democrat already in the chamber is now on board too.
But the two-prong reform package that Democrats appear to be working on won’t actually do much.
Banning filibusters on the motion to proceed doesn’t mean that Republicans (or, when they’re in the minority in a future Senate, Democrats) won’t still be able to kill any legislation with 41 votes. It just means they’ll first have to let the legislation come to the floor, instead of preemptively blocking it with the threat of a filibuster. But once it’s on the floor, they’ll be able to filibuster all they want, leaving today’s reality of a 60-vote Senate unchanged.
But, the thinking of wishful Democrats goes, maybe things will play out differently if Republicans have to engage in real filibusters while bills are being debated. Let Republicans spend hours, or days, holding up Senate business while taking turns railing against a popular piece of Democratic legislation and see how the public reacts! The GOP will be shamed into relenting and will think twice about mounting similar efforts in the future, returning the filibuster to its traditional break-glass-in-case-of-emergency role.
But that’s almost certainly not what would happen. As Jonathan Bernstein has been arguing, this reasoning mistakenly assumes that Republicans aren’t proud of stalling a Democratic president’s agenda. But they are, of course, and there’s no reason to think that dozens of them wouldn’t jump at the chance to fulminate against Obama’s latest unconscionable power grab involving … whatever the issue of the moment happens to be. The individual Republican senators would be treated as heroes in the conservative media bubble, and the same pressure to go along that now binds all Senate Republicans together would still prevail.
Ultimately, it would be the Democrats who’d think twice about forcing a talking filibuster, once it became clear that Republicans would have no problem engaging in one for as long as possible on just about any issue.
This means that if – or when – Democrats pass their reforms in January, the most important aspect of modern Senate life won’t change: It will still take 60 votes to do anything. But that doesn’t guarantee that reform will be a total failure. Assuming Democrats go through with it, it will at least establish a new modern precedent for changing the rules with a simple majority vote. If the reforms fail to change much, Democrats might then feel less restrained about making more dramatic alterations two years from now. The threat of that could also have an effect on Republicans, giving them an incentive not to encourage Democrats to go down that road.
So filibuster reform is worth doing, and now seems inevitable. Just don’t expect too much from it, at least not right away.