If the stomping sounds around the Senate filibuster are familiar, it’s because they are echoes of foot-tappings from a not-too-distant past. The only difference: The shoes are on the other feet.
This latest revival of Potomac Riverdance roared onto the stage with a bang — or at least the threat of “going nuclear” — on the opening day of the 112th Congress. The lead filibuster reformers were threatening to exercise what some call the “nuclear option,” and others the “constitutional option,” of adopting rules changes by simple majority vote without the prospect of blockage by filibuster. Ordinarily, Senate rules require a two-thirds vote to terminate debate on any rules changes (compared to a 60-vote cloture threshold on other matters).
The reformers’ argument is that the Senate is not a continuing body in which old rules are automatically carried forward at the beginning of a new Congress and that it therefore has the constitutional right by simple majority to “determine the rules of its proceedings.” The success of such a strategy, however, depends on the president of the Senate (the U.S. vice president), upholding a controversial ruling, dating back to a 1957 pronouncement by then-Vice President Richard Nixon, that the new Senate is not bound by the rules of the previous Senate (including the two-thirds cloture rule), and thus only 51 Senators are needed to stop debate and adopt rules changes.
Rather than putting the president of the Senate in that difficult position and launching the minority party into ballistic orbit (probably dooming chances for bipartisan cooperation on anything), Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) acted like responsible leaders by working behind the scenes to reach accommodation. That entailed stretching the opening legislative day of Jan. 5 over the ensuing 20-day recess until a multipronged agreement was worked out with the help of Senate Rules and Administration Chairman Charles Schumer (D-N.Y.) and ranking member Lamar Alexander (R-Tenn.).
What emerged was a unanimous consent agreement under which the reformers, led by Democratic Sens. Tom Udall (N.M.), Jeff Merkley (Ore.) and Tom Harkin (Iowa), would implicitly not pull the nuclear trigger in return for eight hours of debate and separate votes on their proposals, which would require a two-thirds vote for adoption (in lieu of having to overcome filibusters by a two-thirds vote). The bipartisan leadership’s two “standing orders” would require 60 votes for adoption. Moreover, the leaders committed themselves to implementing four significant “gentlemen’s agreements.”
Instead of proposing the abolition of all filibusters, the reformers urged modifying their use. One proposal would have gradually ratcheted down to 51 the number of votes to overcome filibusters, another would have prevented the use of filibusters to block consideration of legislation and a third would have forced Senators to stay on the floor to engage in actual talk-a-thons (rather than simply threaten filibusters). None of the three reforms garnered even simple majority support, let alone the requisite two-thirds vote.
The two leadership standing orders, on the other hand, were both adopted by overwhelming majorities. One effectively eliminates “secret holds” by individual Senators on legislation and nominations. The other prevents Senators from forcing the reading of entire amendment texts on the floor if they are available at least 72 hours in advance.