Se­nate lead­ers work to rein in Democrats’ fil­i­buster re­bel­lion

Cham­ber’s long re­cess con­tin­ues as small bloc seeks to change rules

The Washington Post Sunday - - POLITICS & THE NATION - BY PAUL KANE kanep@wash­post.com

Be­fore the week is done, one of the long­est sin­gle “days” in the his­tory of the Se­nate is ex­pected to fi­nally come to an end.

Amid a long-run­ning dis­pute over decades-old fil­i­buster rules, Se­nate lead­ers have used a par­lia­men­tary trick to leave the cham­ber in a state of sus­pended an­i­ma­tion — in re­al­ity ad­journed since Jan. 5 but of­fi­cially con­sid­ered in a long re­cess that’s part of the same in­di­vid­ual leg­isla­tive day.

This nearly three-week break has taken place in large part so lead­er­ship could hold pri­vate ne­go­ti­a­tions to con­sider how to deal with a group of Democrats ag­i­tat­ing to shake up the foun­da­tion of the world’s most de­lib­er­a­tive body, right down to chal­leng­ing the fil­i­buster.

To the dis­may of a younger crop of Democrats and some out­side lib­eral ac­tivists, there is no chance that rules sur­round­ing the fil­i­buster will be chal­lenged, se­nior aides on both sides of the aisle say, be­cause party lead­ers want to pro­tect the right of the Se­nate’s mi­nor­ity party to some­times force a su­per­ma­jor­ity of 60 votes to ap­prove leg­is­la­tion.

In­stead, rank-and-file law­mak­ers will re­ceive pitches from Sens. Charles E. Schumer (D-N.Y.) and La­mar Alexan­der (R-Tenn.), who have been ne­go­ti­at­ing more limited changes, such as with “se­cret holds” that al­low an anony­mous sen­a­tor to slow leg­is­la­tion. In ad­di­tion, some mod­i­fi­ca­tions could be made to the way con­fir­ma­tions are han­dled for agency nom­i­nees who do not have di­rect roles in pol­i­cy­mak­ing.

Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.), both elected in 2008, have been push­ing a never-be­fore-tested op­tion of chang­ing the rules on a party-line vote and are con­sid­er­ing de­mand­ing a vote on their pro­posal. That would re­quire Vice Pres­i­dent Bi­den, in his ca­pac­ity as pres­i­dent of the Se­nate, to rule on whether the cham­ber can change its rules at the start of each new Congress.

“I’m wait­ing to hear. I’m told that the lead­ers are talk­ing about pos­si­ble changes and the way the floor works,” Bi­den said in a brief in­ter­view while vis­it­ing the Se­nate last week. “I may have to rule, so I’m go­ing to keep that opin­ion to me.”

Nei­ther Mi­nor­ity Leader Mitch McCon­nell (R-Ky.) nor Ma­jor­ity Leader Harry M. Reid (D-Nev.) would com­ment on the sta­tus of the talks, which have ef­fec­tively ground the Se­nate to a halt.

With the 47 Repub­li­cans united in op­pos­ing any changes to fil­i­buster rules, Udall, Merkley and Sen. Tom Harkin (D-Iowa), their most se­nior sup­porter, re­mained far short of the votes needed to nul­lify the rule known for­mally as “clo­ture,” re­quir­ing 60 sen­a­tors to vote yes to end de­bate so a fi­nal vote can be held. Many se­nior Democrats, who have watched the ma­jor­ity flip back and forth a half-dozen times in the past 20 years, balked at tak­ing away mi­nor­ity rights, out of fear that Democrats could soon find them­selves in the mi­nor­ity.

More­over, while lib­eral groups such as MoveOn.org and some unions such as the Com­mu­ni­ca­tions-Work­ers of Amer­ica are sup­port­ing the Udall ef­fort, the lib­eral coali­tion is far from united on the is­sue. Some large mem­bers of the AFL-CIO have been no­tice­ably silent, while some abor­tion rights groups have pub­licly de­clared their op­po­si­tion to chang­ing fil­i­buster rules. That, some Demo­cratic aides said, is be­cause in the 1990s and in the early days of the Ge­orge W. Bush White House — when Repub­li­cans con­trolled both ends of the Capi­tol — these groups re­lied on their Se­nate Demo­cratic al­lies and the 60vote thresh­old to pro­tect key rights such as Davis-Ba­con wages for fed­eral works projects and the Roe v. Wade abor­tion de­ci­sion.

The last time a change-the-fil­i­buster de­bate oc­curred, the par­ties were on op­po­site sides. In 2005, then-Mi­nor­ity Leader Reid led the suc­cess­ful ef­fort to de­fend the fil­i­buster and re­jected the idea that the Se­nate’s rules could be changed in such a man­ner. This view holds that the Se­nate is a “con­tin­u­ing body” be­cause only a third of its mem­bers are up for re­elec­tion ev­ery two years, as op­posed to the House, where ev­ery mem­ber faces the vot­ers ev­ery two years.

Repub­li­cans were try­ing to change the rules midyear, a po­si­tion that Udall says is ob­jec­tion­able. In­stead, his group of young sen­a­tors points to sev­eral rul­ings by vice pres­i­dents of the past, Richard M. Nixon and Hu­bert H. Humphrey, in which they ap­peared to rule that the cham­ber’s rules could be al­tered by a sim­ple ma­jor­ity vote at the out­set of each Congress.

That rul­ing, how­ever, was never put into prac­tice. In­stead, that era’s ef­forts at chang­ing fil­i­buster rules — driven by the South­ern bloc’s fil­i­busters of civil rights leg­is­la­tion — took al­most two decades to reach fruition, when in 1975 a large bi­par­ti­san group voted to lower the fil­i­buster thresh­old from a two-thirds ma­jor­ity (67 votes if all sen­a­tors ap­pear) to 60 votes.

That rule change has led to the end of the old “Mr. Smith Goes to Washington” -style fil­i­buster, as the onus is placed heav­ily on the ma­jor­ity to show up and de­liver 60 votes. The mi­nor­ity no longer has to speak at length to stall leg­is­la­tion; it merely needs one sen­a­tor on the floor to ob­ject to pass­ing leg­is­la­tion or ap­prov­ing a nom­i­nee.

Udall wants votes on his pro­pos­als, par­tic­u­larly his “ talk­ing fil­i­buster” re­quire­ment that would force the mi­nor­ity to hold the floor with lengthy de­bate but ul­ti­mately would not al­low it to block a fi­nal sim­ple-ma­jor­ity vote.

“We get back to the spirit of the fil­i­buster,” Udall said Satur­day in a phone in­ter­view. “If the mi­nor­ity wants ad­di­tional de­bate, they should be de­bat­ing, not go­ing home.”

Yet even that change faces long odds. In­stead, Udall and those in his camp may have to set­tle for some changes to se­cret-hold rules and an eas­ier con­fir­ma­tion process for some nom­i­nees.

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