Democratic senators favoring the most robust overhaul of the chamber’s filibuster rules do not have the votes to enact a “talking filibuster,” even with a simple majority, according to the top Democratic vote-counter.
“I would say, at this point, the talking filibuster does not have 51 votes,” Majority Whip Richard J. Durbin of Illinois told reporters Wednesday.
That proposal, championed by several Democratic senators, including relative newcomers Jeff Merkley of Oregon and Tom Udall of New Mexico, would require senators objecting to legislation to hold the floor in order to maintain a filibuster, in a style similar to the title character portrayed by Jimmy Stewart in the film “Mr. Smith Goes to Washington.” Veteran Sen. Frank R. Lautenberg, D-N.J., has long supported such a rules change.
The reality, though, is that modern filibusters do not operate like in the Hollywood portrayal, and it appears the Senate is unwilling to go that far in changing the chamber’s rules.
Durbin said he thinks the votes exist to make other significant modifications through use of the “constitutional” or “nuclear” option of a simple-majority vote at the start of a new Congress.
Momentum seems to be behind a package that would eliminate filibusters on motions to proceed, cut down post-cloture debate time on nominations and curb or eliminate filibusters on sending bills to conference with the House. Durbin also suggested Democrats would have the votes to set up a process requiring 41 votes to maintain a filibuster if they went out on their own.
Durbin suggested work continues on a plan that would require objecting senators to hold the floor after any successful vote to limit debate, or invoke cloture. Currently, the Senate must automatically wait 30 hours after invoking cloture, but some Democrats would like to shorten that time if no senators are willing to come to the floor to continue their objections.
“Ultimately what happens post-cloture and you have the 30 hours, what is your obligation on the floor? We all believe there should be an obligation on the floor or move the question,” he said.
As for a negotiated settlement, work continues between Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., to avert the expected partisan, procedural standoff that would result from any Democratic action to change the rules by a simple majority vote. Republicans argue that Senate rules do not allow such changes in the rules, arguing they are entitled to erect a 67-vote hurdle to rules changes.
“I will continue to work with the Republican leader today on a package of reforms that will help the Senate operate more efficiently,” Reid said on the Senate floor Wednesday. “I remain cautiously optimistic we will be able to move forward on a bipartisan basis. However, Democrats reserve the right of all Senators to propose changes to Senate rules.”
Durbin said: “It’s in McConnell’s court. Harry Reid has passed along a suggestion, and we are waiting for a response.”
He maintained that he would prefer to avoid going down the path of changing the rules with a simple majority vote, although he expressed the view that precedent exists to do so. Even that is a point of some contention, with supporters of the idea consistently pointing to advisory opinions made by vice presidents, who serve as presidents of the Senate.
Republican aides say the Senate is a continuing body and therefore its rules continue and cannot be changed by a simple majority vote. However, Democrats contend that the Senate has not yet acquiesced to accepting the Senate’s rules from the last Congress.
There’s evidence to support the GOP position because there have been several references to standing rules in the Senate’s actions thus far in the 113th Congress, even as Reid has continued the first legislative day.
Nonetheless, despite GOP opposition, nothing would prevent Senate Democrats from moving forward if they have the 51 votes needed.