Harry Reid, Mitch McConnell Reach Filibuster Reform Deal
The pressure from the liberal senators, led by Oregon Democrat Jeff Merkley and backed by a major coalition of progressive groups, created the political space for Reid to cut the deal with McConnell, which includes changes to how the Senate operates but leaves a fundamental feature, the silent filibuster, in place.
The deal will address the filibuster on the motion to proceed by changing the amount of debate time that would follow a cloture vote from 30 hours to four, speeding up Senate business and allowing more legislation to reach the floor. But the deal still requires Democrats to muscle 60 votes to invoke cloture on that motion, despite Reid's earlier suggestion that he would bar a filibuster on that motion entirely.
An alternate route to get past the motion to proceed will be implemented as a change to the rules, and a filibuster on the motion would be barred if the majority can find eight members of the minority, including the minority leader, to sign a petition. But Democrats already have 55 members in their caucus, five short of the 60 needed to end a filibuster, so it's unclear what the purpose of getting three additional Republicans would be.
Under the agreement, the minority party will be able to offer two amendments on each bill, a major concession to Republicans. This change is made only as a standing order, not a rules change, and expires at the end of the term.
The new rules will also make it easier for the majority to appoint conferees once a bill has passed, but leaves in place the minority's ability to filibuster that motion once -- meaning that even after the Senate and House have passed a bill, the minority can still mount a filibuster one more time.
Reid won concessions on district court nominations as well. Under the old rules, after a filibuster had been beaten, 30 more hours were required to pass before a nominee could finally be confirmed. That delay threatened to tie the chamber in knots. The new rules will only allow two hours to pass after cloture is invoked before a nominee is confirmed.
The two leaders agreed that they will make some changes in how the Senate carries out filibusters under the existing rules, reminiscent of the handshake agreement last term, which quickly fell apart. First, senators who wish to object or threaten a filibuster must actually come to the floor to do so. And second, the two leaders will make sure that debate time post-cloture is actually used in debate. 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.
The arrangement between Reid and McConnell means that the majority leader will not resort to his controversial threat, known as the "nuclear option," to change the rules via 51 votes on the first day of the congressional session. Reid may have been able to achieve greater reforms that way, but several members of his own party were uncomfortable with the precedent it would have set. And Reid himself, an institutionalist, wanted a bipartisan deal for the long-term health of the institution. Reid presented McConnell with two offers -- one bipartisan accord consisting of weaker reforms, and a stronger package Reid was willing to ram through on a partisan vote.
McConnell chose the bipartisan route.
Supporters of the deal insist that even without using the "nuclear option," Reid was able to secure tangible changes on the pace and conduct of Senate business.
The deal, said one top Democratic aide, is "not everything Reid wanted but there are significant changes. Everybody was so focused on the filibuster, but as you know there were a lot of Dems who really felt uncomfortable going there. Let's face it, if not for 60 then Roe v. Wade might be dead and Social Security would be private accounts. But, Reid gets the power to get on bills without having to file cloture. That's a big deal. Also, post cloture time for non appellate judges will be cut from 30 hours to 2. That's huge because now Reid can stack nominations, which forces the Repubs' hands."
Added another supportive Democratic Senate aide: "We are now a more efficient Senate; we'll be able to get on bills without having 60 votes and without having to spend a week to do it. We are getting the ability to confirm certain nominees who have objections against them. Instead of taking a week to confirm them, it'll take a few hours. That's all Reid ever really wanted."
The compromise is a blow to Merkley, who had been the most outspoken proponent of what he called the "talking filibuster," which would change current rules so that the minority couldn't filibuster a bill by simply objecting and sitting down or leaving the chamber.
Once that provision looked to be faded, reformers gravitated toward a proposal from Reid that would flip the onus onto the minority by requiring Republicans to affirmatively come up with 41 votes to sustain a filibuster, rather than requiring Democrats to find 60 to end it. Reid was only willing to go forward with such a move if McConnell had rejected his offer.
At Tuesday's closed-door caucus meeting, Merkley was upbraided by Reid for breaking unspoken Senate rules and naming specific senators in a conference call with Democratic activists last week, according to sources familiar with the exchange. "He's pissed off so many in the caucus," said one Democratic aide piqued at Merkley. "He has been having conference calls with progressive donors and activists trying to get them energized. He's named specific Dem Senators. Many are furious. He was called out on Tuesday in caucus and very well could be again today."
A Reid staffer was on the conference call with the activists and donors, and Merkley's move was reported the next day by Politico:
On a private call with the Bay Area Democrats on Wednesday, Merkley identified Reid as the key person in the talks, and he urged activists to target members of Reid’s leadership team ahead of their meetings next week, according to people on the call. He also characterized Democratic Sens. Max Baucus (Mont.), Patrick Leahy (Vt.), Dianne Feinstein (Calif.), Barbara Boxer (Calif.), Joe Manchin (West. Va.) and Mark Pryor (Ark.) as wrestling with his proposal, sources say.According to a source familiar with the call, the host, Wade Randlett, encouraged donors who were going to the inauguration to seek out senators at events, such as the Majority Trust reception last Saturday, and offered to coordinate contacts.
UPDATE: 11:45 a.m. -- Fix the Senate Now, a coalition of over 50 progressive and labor organizations that has been tirelessly advocating for an end to the silent filibuster, called the emerging deal a "missed opportunity."
"While the provisions included in the likely agreement may help with streamlining certain nominations, potentially a significant step forward, the agreement avoids measures that would actually raise the costs of Senate obstruction," the group said in a statement. "Neither the talking filibuster provision nor the shifting the burden provision is expected to be included in the final package. While certain details remain important and unresolved, such as potential conditions attached to the elimination of filibusters on the motion to proceed, we know enough to sum up the agreement as follows: a missed opportunity to provide meaningful filibuster reform, while advancing some decent procedural improvements."
In its statement, Fix the Senate Now also praised the "tireless advocacy" of Merkley and fellow Sens. Tom Harkin (D-Iowa) and Tom Udall (D-N.M.).
The coalition had been pushing for the Senate to adopt Merkley's talking filibuster proposal, and also called on Reid to implement other far-reaching reforms, such as requiring the minority to find 41 votes to maintain a filibuster. If the agreement proceeds as expected, the group said, the Senate "will have missed an opportunity to restore accountability and deliberation to the Senate, while not raising the costs of obstruction."
UPDATE: 1:30 p.m. -- CREDO, another group that had been pressuring the Senate to pass strong filibuster reform, criticized the deal in a statement.
"In 2010, Senate Majority Leader Harry Reid sold out Senate Democrats by striking a 'gentleman's agreement' with Republican Minority Leader McConnell instead of pushing for strong filibuster reform," said Becky Bond, CREDO's political director. "And now he's done the exact same thing, again. When will Democratic Leadership learn the lesson that Republicans will not negotiate in good faith?"
UPDATE: 4:00 p.m. -- As Senate Democrats trickled out of their caucus meeting, where Reid presented his deal with McConnell, the consensus appeared to be that while the reforms were not as far-reaching as they had hoped, compromise was better than taking matters into their own hands.
"It's a compromise, and I'm big on that," said Sen. Claire McCaskill (D-Mo.). "I think it's progress, and we're starting on the right foot. And if we would have started with blowing everything up, I think it would have been months before we could get back to a place where we could hope to try to really get back to regular order."
Sen. Dick Durbin (D-Ill.) said the deal was a real agreement between both leaders. "That is a very positive environment to start this session," he said.
Asked about complaints from filibuster reform advocates who were seeking an end to the silent filibuster, Durbin essentially said that life isn't always fair.
"Let me tell you, that's how this world works," he said. "People start aspiring at very high levels, then you get a negotiation, then you reach something called compromise. And I think we are at that point."
Durbin said there was overwhelming support for the deal among Senate Democrats, though he conceded that he was uncertain whether it would make it easier to pass bills.
"It can," he said. "It requires good will [and] good faith."
Durbin also backed up Reid's claim that he had the 51 votes necessary to use the so-called nuclear, or constitutional, option, but he said the goal was always to avoid using extreme measures and instead reach a compromise that both the majority and minority would be comfortable with.
McCaskill, too, hinted that more could have been done had Reid gone forth without Republicans -- but she remained enthusiastic about the deal's prospects.
"Will it work as well as some of us want to? That remains to be seen," she said. "But it's going to be better."
Sen. Carl Levin (D-Mich.), who cosponsored the bipartisan bill that the final deal most closely resembles, had no complaints.
"It'll give great momentum to working on a bipartisan basis in the Senate," Levin said. "What we've avoided in a bipartisan approach is the use of this nuclear option or constitutional option, which Democrats strongly opposed when the Republicans threatened it a few years ago."
"If it were used, if it had to be used, it would have turned a gridlock into a meltdown," he added. "The Senate would have had a meltdown."
This article was clarified to note that the proposed two-hour post-cloture debate rule would only apply to district court nominees, rather than all judicial nominees.