Wednesday, January 5, 2011

Udall/Merkley Details

I don't really have much new to say about the now-unveiled Udall/Merkley reform package, as reported by Greg Sargent.  From a pro-reform point of view, the main thrust of the exercise seems to be proving that reform, any reform, is possible.  The specific details, however, continue to promise no significant change from the newly-instituted 60 vote Senate. 

Secret holds?  If holds are a problem (and in general I'm only really concerned about them on nominations), then the problem is the hold itself, not secrecy.  Making holds public won't change anything.  There's also a strange, from my point of view, emphasis on forcing "live" filibusters, which (without further rules changes) will also change nothing.  Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants.  Assuming otherwise, as these reforms seem to do, is a real misunderstanding.

Two provisions, elimination of a filibuster on the motion to proceed for bills and a dramatic reduction of post-cloture time on nominations, aim to reduce the ability of smaller minorities to use the scarcity of floor time to defeat things they don't have the numbers to stop.  On the margins, this might make some difference, but it's not really clear whether that's the case or not.  Regardless, they make no difference at all for those bills and nominations that can't reach 60 votes.

The bigger news today is that Udall and Merkley have included protection for the minority in their proposal, which would guarantee the minority's right to offer germane amendments.  In general, I think that's a good idea, but it doesn't really do anything one way or another about changing the 60 vote Senate.  Whether one believes that the minority has had an adequate chance to offer amendments or not, no one believes that Republicans would have dropped filibusters in exchange for the ability to offer a small number of germane amendments.  After all, they insisted on filibustering ever nomination in the 111th Congress -- that is, they insisted on needing 60 votes for every nomination -- even though amendments were irrelevant.

So, what we're left with is a possible streamlining on relatively noncontroversial measures, but no change at all on anything the minority party wants to block.  And new protections for the minority party.  It's all, as I've been saying, very underwhelming. 

Perhaps that's deliberate.  60 isn't going to matter very much on legislation in the 112th Congress, because of the GOP majority in the House.  Reformers, here, may just be settling for the long game.  If Democrats didn't have the votes needed to end the 60 vote Senate at this time and under these circumstances, perhaps reformers will be satisfied with establishing a clear precedent that a simple majority can change the rules, at least at the beginning of a Congress.  Should things work out well for the Democrats in 2012, and the next Congress returns unified Democratic control but (as is almost certain) falls short of 60 Democratic Senators, then the precedent set now might make it somewhat easier to act right at the beginning of the 113th Senate.  I'm not sure that much is gained from that strategy, but then again I'm for reforming, and not ending, the filibuster. 

At any rate, my sense is that there's very little at stake in this fight, as it's been defined by the reformers.  Senate rules are very important, but these changes just wouldn't do much.


  1. Am I correct that to maintain a live filibuster, the minority has to keep 40 senators (or however many) actually present?

    I think the notion is to (1) make the filibuster more inconvenient to the minority and (2) get the media's attention so it's clear the minority is indeed obstructing.

  2. I think these reforms could be a lot more significant than you realize. For instance, the significant reduction in time on cloture votes. I did not know this at the time, but apparently one of the main reasons why Reid rarely forced the GOP to actually start a filibuster was because of the 30 hour requirement after filing for cloture. Reid just had to many pressing items on the agenda to spend a lot of time on 30 hour procedural motions. By reducing this to one or two hours it could significantly increase the likelihood that he would actually call for a cloture vote.

    The vote could still fail because of the 60 vote requirement, but at least it would be on record. This would be a vast improvement over the defacto silent filibuster we have today where the GOP just has to inform Reid of their intent and that causes him to punt on them making it official.

  3. Just plain Anderson,

    You are not correct. Under both current rules and the Udall/Merkley proposal, the minority only needs to keep someone talking. The difference is that under current rules, the minority doesn't even need to do that; they can just switch to a quorum call, and if the majority doesn't provide enough Senators, the quorum call keeps going.

    Chris Anderson,

    Postcloture time won't affect the things that can't get cloture. It certainly can mean that the majority can squeeze more nominations into the same amount of floor time. However, it's not clear that the reduction in floor time required will make it worth it for the majority to move nominations with not much opposition.

    It's worth mentioning that it hasn't been unusual for the minority to yield back postcloture time, anyway. It's just not certain to me that this reform will really change anything.

  4. I have a catch related to one of Bernstein's pet issues (legislator age), but do not have twitter capability--can someone alert him?:

    Barone of the Washington Examiner is talking about how the GOP House caucus got significantly younger with all the newbies; the Democratic caucus got significantly older, with all the young legislators from 2006 and 2008 being defeated.


    the very numbers he quotes say that the 112th's Dem caucus is 2 years older than the 111th's Dem caucus. So in the 111th, the average Dem was born in 1951... and in the 112th, the average Dem was born in 1951! This is just because turnover was largely age-INdependant! His entire column is gobbledegook!

  5. Jonathan,

    Thanks for this analysis. It seems to me that what's at stake is "proving" (perhaps demonstrating is a better word) that Senate rules can, in fact, be changed. Given what we've been through in recent years, that's no small accomplishment...if the Dems can pull it off.

  6. There's some value in these changes, but the failure to lower the cloture requirement means that fundamentally they won't deter Mitch McConnell and company from obstructing or delaying every bill and nomination the next 2 years.

    Now is the time to go to a majority rules Senate. Putting on a show that reform is possible without really doing reform just means it will never happen. We saw the same situation when a President was elected by the electoral college+Supreme Court without a popular plurality in 2000 and yet the electoral college wasn't abolished the next year. The issue just died and we'll be stuck with the EC at least until the next time some Republican is appointed President by the Supreme Court.

  7. Ron,

    Outside of that I'm against a simple-majority Senate, I think you're wrong about the politics of it. Whether or not the Dems do anything minor this time around, every Demcoratic candidate for Senate with a contested primary is going to be for reform in '12. If Obama wins reelection and the Democrats retain control of the Senate, there's every chance that a second round of reforms will pass.


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