Reid is expected to use a procedural trick to ensure that his opportunity for filibuster reform does not slip away after the first day of the 113th Congress.
Senate Democratic and Republican leaders hope to avoid a legislative standoff on the first day of the 113th Congress by delaying any debate on filibuster rules changes until after the president’s inauguration ceremony on Jan. 21.
Instead, Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., plan to use the next two weeks to negotiate curbs to perceived filibuster abuse.
Senate Democratic aides said the rules debate is expected to begin Jan. 22, rather than Thursday, but Reid will use a procedural trick to ensure that his options remain open. Instead of adjourning the Senate at the end of the day Thursday, Reid will put the chamber in recess to keep the Senate from closing out the first legislative day of the session. That’s because Democrats believe the first legislative day provides them with the opportunity to change Senate rules by a simple majority vote. The first legislative day could last for months of calendar time if Reid so chooses.
Though Reid will preserve his options, he and McConnell hope to forge a compromise on changing the rules or establishing temporary rules for the 113th Congress only that could avert a floor fight.
Reid has signaled that he could go down the road of making changes with only Democratic votes as an option of last resort, doubtless wary that such a move would further erode Senate comity.
“The details of the packages to be proposed by leadership are still evolving,” a Democratic aide familiar with the discussions said Wednesday.
Sen. Tom Udall, D-N.M., thinks that if push comes to shove, Reid would have the votes needed to use the constitutional, or nuclear, option. “When the reality sets on the Senate that we have 51 votes, then people start thinking, ‘Well, how do we want to put this together?’” Udall said.
Sen. Sheldon Whitehouse, D-R.I., on Wednesday engaged in a floor colloquy with Sen. Jeff Sessions, R-Ala., who has expressed concern about even some of the changes proposed by a bipartisan group of senators. Those members have offered a plan to pare down the number of motions that can be filibustered in exchange for guaranteeing the minority a set number of amendments to all bills.
Whitehouse rejected Sessions’ position that Reid and other Democrats would be breaking the rules to impose filibuster changes with 51 votes, but he conceded the parliamentary concerns.
“The senator makes a fair point that from a point of view of precedent, very different than breaking the rules but from the point of view of precedent, it sets a new standard that we should be very cautious about going to,” Whitehouse said.
Udall and Democratic Sen. Jeff Merkley of Oregon plan to continue their push for a filibuster reform that focuses on the “talking filibuster,” which would require members to stand up and defend their efforts to obstruct legislation or allow for a majority vote to move forward. At some point, that would likely allow a simple majority vote on closing debate on legislation and other business, rather than the 60 votes required under the current filibuster process.
Merkley and Udall may lose that fight if McConnell and Reid come to a deal, but the two senators’ efforts will likely force some incremental changes, akin to the filibuster overhaul package being pushed by Sens. Carl Levin, D-Mich.; John McCain, R-Ariz., and six other senators.
Merkley and Udall have been critical of the Levin-McCain proposal because they believe it would not require members to take a public stance in opposition to legislation or nominations.
Some critics of the Levin-McCain package, including Merkley and Udall, argue it doesn’t make it any harder for the minority to delay legislation, but it does allow it to attach poison pill amendments to any bill by a simple majority vote.
Indeed, the proposal could allow non-germane amendments at any point in the process — even after the Senate has voted for cloture, or to close debate — a situation that opens the door to highly political votes that could make the procedure difficult to deploy.
Sessions blasted the idea of allowing a limited universe of amendments, saying that it could give too much power to committee chairmen and leadership in deciding which senators get to offer amendments.
“I’m not sure we ought to further embed in our rules superpowers to one senator or another group of senators,” Sessions said, noting that the function of the majority leader is more of an entrenched custom than a result of any existing rule.
Other changes could find more broad support, such as eliminating the ability to force three cloture votes on getting a Senate-passed bill into a conference committee with the House, which can stall all Senate business for more than a week. That possibility has contributed to the breakdown of the conference committee process for getting agreements between the chambers in favor of legislative “ping-pong.”