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.
The first two bipartisan gentlemen’s agreements commit the minority “to reduce the use of the filibuster on motions to proceed” to consider legislation and the majority in turn “to reduce the use of ‘filling the [amendment] tree’ to block all amendments.” (Note the term “reduce:” Yes, Virginia, there is a partisan clause.)
The third agreement commits the Senate to enacting legislation to reduce by a third the 1,400 executive branch nominations now requiring confirmation — a calendar-clogger causing major backlogs. Finally, to seal the whole deal, Reid and McConnell promised not to invoke the constitutional option for changing Senate rules in this or the next Congress (which reformers made clear does not bind them).
All this is reminiscent of the Senate Republican majority’s threat in 2005 to deploy the nuclear option to eliminate filibusters against consideration of President George W. Bush’s judicial nominations. That threat, much maligned at the time, also led to behind-the-scenes negotiations to avert Democrats’ vow to shut down the Senate if their right to filibuster was curtailed (hence the term “nuclear” because it would “blow the place up”). The result was a bipartisan agreement among a gang of 14 Senators who pledged not to support filibusters of judicial nominations (except in extraordinary circumstances). That agreement held and contributed to preserving Senate peace and comity on other matters as well.
This year’s failed reform efforts produced headlines such as, “Filibuster Reform Goes Bust” and “Filibuster Lives.” The reality, however, is that the reformers’ bold ploy did force the hand of the bipartisan leadership to work out agreements that will enable the Senate to operate in a more functional and conciliatory manner. That bodes well for getting some important things done this year, even on the eve of what will be a contentious election season.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.