McConnell, left, and Reid have agreed to modestly modify Senate filibuster rules and appear to have a gentlemen’s agreement to avoid the constant quorum calls that have plagued the chamber in recent years.
Senators voted overwhelmingly Thursday evening to enact a package of modest changes to the Senate’s rules and procedures, adopting an agreement brokered by Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky.
The Senate voted, 78-16, to adopt temporary rules changes for the 113th Congress, easily clearing a 60-vote threshold set up for the vote. Then, the Senate adopted a change to the chamber’s rules 86-9. As is customary, the chamber set a two-thirds threshold for the vote, since two-thirds of senators voting are required to limit debate on a rules change facing a filibuster under normal circumstances.
Neither party leader made floor speeches before the votes, which were the first roll calls of the 113th Congress.
While the package falls far short of what a group of more liberal Democratic senators had sought, it should accomplish one of Reid’s stated goals: allowing business to progress more quickly. In no case, however, will senators lose the right to force a 60-vote supermajority vote on bills and nominations as provided under the existing rules.
Most significantly, the package modifies Senate procedure to provide two new expedited options for bringing legislation to the floor.
On legislative items on which Reid and McConnell agree to take up, the cloture vote on the motion to proceed would take place the day after the motion is filed, eliminating a waiting day. In addition, there would be no further debate after cloture is invoked, cutting out another day. That falls short of doing away with the ability to filibuster motions to proceed altogether. (Cloture motions, which limit debate, require 60 votes for adoption.)
Reid would have a second choice, however. The majority could proceed to legislation without risk of an initial filibuster if it guaranteed that each party is allowed to offer a pair of amendments. Partially resolving a concern publicly raised by Sen. Tom Harkin, D-Iowa, amendments offered through that process would be subject to an automatic 60-vote threshold if they are not germane. That’s based on an idea from Sens. John McCain, R-Ariz., and Carl Levin, D-Mich.
Shortly before the votes, Utah Republican Sen. Mike Lee cautioned that those changes could actually undermine the ability of all senators to have rights to offer amendments.
In addition, the rules package will make it easier to get bills into conference because senators will have only one chance to filibuster, rather than the three in place under the old rules. The difficulty of getting bills to conference has made the House-Senate negotiating process virtually defunct because only unanimous consent allows bills to go to conference without burning too much floor time.
Separate from the formal changes, Reid and McConnell appear to have another gentlemen’s agreement, similar to the one they entered into during the 2011 rules debate. This time, the leaders will say they agree to press senators to actually use post-cloture debate time and raise objections on the floor. That’s designed to end the constant quorum calls that have plagued the Senate in recent years.
Democratic Sen. Tom Udall of New Mexico explained that if a senator asks for a quorum call after a bill has cleared a filibuster hurdle and a quorum is produced, further quorum calls would be construed as dilatory motions. Such motions are not in order after the 60-vote threshold has already been achieved and the move would allow the majority to call a vote. Udall had been among the senators championing more robust changes.
“There is a limitation on the use of the time after a cloture vote. Currently, you have 30 hours, and it’s 30 hours usually of quorum calls. This incessant roll-calling which leads people to go to their cable provider and complain that something’s wrong with my channel, the Senate’s not doing anything,” said Senate Majority Whip Richard J. Durbin, D-Ill.
“If senators seeking to slow down business simply put in quorum calls to delay action, the Senate will go live, force votes to produce a quorum and otherwise work to make sure Senators actually show up and debate,” a senior Democratic aide explained. The practice of holding live quorums has been rare in recent history.
That sort of handshake agreement caused qualms among more liberal senators and outsiders pushing for a “talking filibuster” that would require objecting senators to hold the floor. That was a central part of a rules overhaul (S Res 4) introduced by Harkin, Udall and fellow Democratic Sen. Jeff Merkley of Oregon.
Among the outside groups opposed is Common Cause, which actually had filed a lawsuit to try to get the filibuster declared unconstitutional.
“My friend Harry Reid, the senator from Searchlight, Nev., has gone missing in the fight for filibuster reform,” Common Cause President Bob Edgar said. “The deal he and Sen. McConnell have struck allows individual senators to continue blocking debate and action by the entire body and to do so without explaining themselves to their colleagues or the American people.”
Udall, however, said that he would support the proposals.
“I’m going to vote for the proposals. This is progress. It’s moving us in the right direction,” Udall said. “This is not every thing I wanted, obviously.”
Merkley expressed a similar sentiment in a statement, saying he would stay vigilant about the issues.
“I’m disappointed that we didn’t take a bolder step to fix the Senate, but what is most important today is the deep determination of Senators to return the Senate to a more functional institution,” he said. “If the modest steps taken today do not end the paralysis the Senate currently suffers, many Senators are determined to revisit this debate and explore stronger remedies.” On the issue of nominations, the Reid-McConnell agreement sets, as a standing order for the 113th Congress, much shorter limits on post-cloture debate on routine nominations. On district judicial nominations, which often get up-or-down votes anyway, the debate would be limited to two hours after breaking a filibuster, while there would be no more than eight hours on a host of other nominations, not including senior officials such as Cabinet nominees or other senior judgeships.
The deal averted a situation in which Democrats had planned to assert their ability to change the rules by a simple majority vote. They argued such a vote was possible at the start of a new Congress, but Republicans charged that the Senate is a continuing body and that the rules allowed them to erect a 67-vote hurdle to rules changes.
To lift the threat that Reid might try again this Congress to use the so-called “nuclear option,” Reid pledged that any further changes to the rules must follow the regular order.
“Any other resolutions related to Senate procedure would be subject to a regular order process, including consideration by the Rules Committee,” Reid said in a colloquy between Reid and McConnell that was inserted in the Congressional Record. The pledge effectively diffused the “nuclear option” until at least January 2015.