In light of the filibuster of Chuck Hagel, Senate rules reform advocates are having a bit of an “I told you so" moment, lamenting the fact that Senate Majority Leader Harry Reid and other Democratic leaders agreed to a weak filibuster tweak last month instead of one of the more robust plans reformers had hoped for. In response, it's been noted that those proposals would not have eliminated the filibuster or even the 60 vote threshold needed to break one.
But that doesn't mean they wouldn't have helped Hagel. In fact, if Oregon Democrat Jeff Merkley’s plan had been in effect yesterday afternoon when the Senate voted on cloture, the vote would have succeeded and Hagel would be one step closer to confirmation.
Here’s why: While Merkley’s “talking filibuster” idea got the most attention, one plan the reformers would flip the burden for preserving a filibuster from the majority to the minority. Right now, the majority (Democrats) need to assemble 60 votes to break a filibuster, regardless of how many Republicans vote against cloture -- anything less than that means the vote dies. So, under yesterday's 58-40 vote, Democrats couldn't move the vote forward.
But under a plan that Merkley and others pushed, the reverse would be true: The minority (Republicans) would need to assemble 41 votes to prove they can stop a cloture motion, and any absent senators in the minority would be considered in the affirmative. Again, yesterday’s vote was 58-40, meaning Republicans would have fallen one vote short of preserving their filibuster against Hagel. In that alternative universe, all that would stand between Hagel and confirmation would be 30-hours of post-cloture debate and a final vote, which only requires a 51 vote simple majority to succeed. He could be confirmed this weekend.
Five Republicans voted with the Democrats - Thad Cochran of Mississippi, Lisa Murkowski of Alaska, Susan Collins of Maine, and Mike Johanns of Nebraska -- while Utah’s Orrin Hatch voted present and Louisiana's David Vitter was absent. To be fair, if Merkley’s rule had been in effect, Republicans very likely would have called Vitter back to the chamber to make sure he voted, and he would presumably voted against cloture, thus giving them the 41 votes needed to keep up the obstruction.
But it would also mean that Democrats would need to peel off only one Republican to vote present or to skip the vote entirely, as Vitter did, in order to win. Right now, they need to get one more Republican to vote in favor of cloture, which is a much taller order. It would also force Republicans to stay in Washington as long as they want to preserve their filibuster. Instead, they're expected to leave the capital later today for the President's Day recess and not reconsider Hagel's nomination for another 10 days.