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By Karoun Demirjian (contact) 
Thursday, Jan. 3, 2013 | 2 p.m.
Harry Reid
Before things really get under way in the 113th Congress, Sen. Harry Reid’s got a big decision to make: Will he change the Senate filibuster rules with the nuclear option or make a deal with Republicans to go partway?
A group of Democratic senators pushing for Reid to dramatically reduce the use of the procedural filibuster says he’s got the votes to do it.
“I believe we have 51 votes to use the Constitution and change the rules,” said New Mexico Sen. Tom Udall, one of a trio of Democratic senators proposing a sweeping package of reforms.
“When leader Reid steps forward and says, ‘I’ve seen this, seen the proposals, this is what I like and this is what I’m going to do,’ that’s where the rubber really hits the road,” Udall said. “When he’s ready to do that, he’s going to have the 51 votes.”
Reid has long been complaining that he has had to deal with more procedural filibuster threats than any majority leader in history.
“The Senate is simply not working as it should,” he said Thursday. “That is why, in the last Congress, I made plain that Democrats would do something to fix these issues.”
The question is how he will do it.
Republicans say that to pass a rule change to the filibuster, Reid needs to have a filibuster-proof majority of 60 votes, which he likely can’t get. He only has 55 Democrats in the Senate, and not even all of them may support a change.
But Reid has argued that, technically, he only needs a simple majority for new rules, because it’s a new Congress, and there’s nothing in the Constitution that says the filibuster has to be part of the rules.
If Reid relies on the simple majority to pass rules for the 113th Congress, it is known as the “nuclear” option, because it presupposes that Senate rules have already changed to change the rules.
The filibuster is a long-held procedural tradition in the Senate, where one or a group of Senators can hold up progress on a bill by talking it to death. It was made famous in the 1939 Frank Capra classic “Mr. Smith Goes to Washington.”
The procedural filibuster is when one or a group of senators holds up legislation by threatening to talk a bill to death, requiring the majority leader to come up with 60 votes to get around the roadblock.
In the procedural filibuster, senators never actually have to go to the floor and hold court against the legislation; the registered objection is enough to force the majority to clear a 60-vote hurdle.
Democrats have argued the last few years that Republicans use the filibuster to score political points, to the detriment of addressing important policy issues.
Republicans retort that the filibuster exists to protect the rights of the minority. They complain that Reid keeps them from being able to propose amendments to bills, leaving them with little recourse but to threaten a filibuster.
Earlier this week, a bipartisan group of senators led by Carl Levin of Michigan and John McCain of Arizona introduced a filibuster reform bill that would prevent the Senate from filibustering amendments.
But Udall and his co-authors, Sens. Jeff Merkley of Oregon and Tom Harkin of Iowa, don’t think the bipartisan proposal goes far enough.
The procedural filibuster, which they also refer to as a “silent filibuster,” is “a prescription for paralysis,” Merkley said.
They want to create a “talking filibuster” process in which if a simple majority of the Senate votes for a bill but not 60 senators, the minority can filibuster — but only so long as they can keep up talking on the floor.
“This forces Senators who filibuster to actually speak on the floor, greatly increasing public accountability and requiring time and energy if the minority wants to use this tool to obstruct the Senate,” Udall, Merkley and Harkin wrote in the notes on their proposal.
Their proposed package would eliminate the filibuster for motions to start debating bills and motions to send bills that have already cleared the House and Senate to conference committees.
It would also reduce the maximum time for a procedural filibuster from 30 hours to 2 hours when senators are debating presidential nominations instead of policy issues.
“These are not radical propositions,” Merkley said. “None of them are about silencing the voice of the minority. None of them are, if you will, a power grab.”
Merkley and Udall acknowledged, however, that it will be Reid’s call whether to join them or go for a modified, bipartisan proposal. Publicly, at least, Reid hasn’t made up his mind.
“I commend these passionate leaders,” Reid said of Merkley, Udall, and Harkin. “They have made compelling arguments for reform.”
In the next breath, Reid thanked Levin and McCain “for their many hours of work and negotiation.”
Because neither the filibuster nor the procedural filibuster was created by the Constitution, lawmakers have to reapprove their use as part of the Senate rules at the start of every Congress. Though the 113th Congress was sworn in Thursday afternoon, Reid deferred that debate and vote until later in January, after the presidential inauguration Jan. 20.
Reid should be making the Republicans stand up and read the phone book. Do that a few times and they'll think twice about the filibuster!
Notacon, you mean like Reid did back in the day?
Reid only hates it because he has allowed the THREAT of a filibuster to substitute for the real thing. His lack of leadership is coming back to haunt him.
Harry wants to change the fundamental way things are done in the Senate. That is just not going to happen. The filibuster rules should remain the same. This prevents characters like Reid to push poorly drafted legislation through the Senate. Harry thinks he is some kind of king and trust me he is not.
Of the 4 posts so far, I bet 2 of you voted for Angle.
It really won't matter with the Republicans in control of the House. Bills passed with a small majority in the Senate simply will not be adopted by the House. But, what happens if the Republicans retake the Senate by one seat or a few seats in two years and that new rule is in place? That would mean the Congress would pass Republican bills with no Democrat consent or contribution as Democrats could no longer filibuster either.
There are a couple errors in the article:
"Republicans say that to pass a rule change to the filibuster, Reid needs to have a filibuster-proof majority of 60 votes...."
Republicans actually say Reid needs 2/3 to make a rule change (the rule from the previous [112th] Senate), not 60 votes.
"If Reid relies on the simple majority to pass rules for the 113th Congress, it is known as the "nuclear" option, because it presupposes that Senate rules have already changed to change the rules."
The "nuclear option" term, as originally coined [by Trent Lott], refers to changing the rule in the middle of a session with a majority, rather than establishing rules on the first "legislative day" of a Senate, which is arguably more appropriately called the "Constitutional option." But since these names, particularly the "nuclear" one, are nicknames, I guess one can call them whatever one wants, so opponents will call them both "nuclear," and proponents might call them both "Constitutional." And when they change the terminology as they move from minority to majority, you'll know they are hypocrites. (My guess is Senators Tom Harken and Tom Udall will be exceptions.)
But whatever you call it, changing the rule on day one does not presume the rules have already changed. It presumes there are no Senate rules at all, so it goes by common law, the Constitution, and previous court decisions. And on that basis, majority will rule until some other rule is established; furthermore, a legislature cannot have its rules dictated by another body (the Constitution is not another "body"), such as a previous legislature (e.g. Senate). And, of course, the new Senate cannot create a rule to dictate what the Senate in 2019 or 2047 must do (concept known as entrenchment).
Re "going bust" comment that changing rule doesn't matter currently, due to House being on opposite side of issues: Actually what really matters for the next two years is that in the absence of filibuster reform appointments to administrative positions and the federal courts will continue to be held up by a single Senator with a gripe unrelated to the prospective department head or judge. As a result, well-qualified people will balk at serving. Imagine a successful Nevada attorney with a family gets nominated by the President for a high position, but won't know for months or years whether her nomination will be held up by the whim of a Senator from Mississippi or New Hampshire, who has a burr in his &*#@ about something unrelated. Does she move her kids to new schools? Does she quit taking new clients or cases? Or does she say "No, thanks," since there is a real possibility that her nomination will never get approved? This hurts us all.
And regarding a switch to the minority: Tough luck. The Democrats won't like being in the minority no matter what, but in that case they shouldn't be allowed to obstruct either. Minority rights are protected in the Constitution, not in Senate rules. Unpopular political parties do not deserve special treatment, whoever they are.
We should let Harry Reid know how we feel. My hope is that he does not fall for a weak compromise on this important issue, and if he does, the Udall/Merkley/Harken trio and their supporters will insist on a majority vote on additional reforms. And they certainly know that once this is done, a different political party in a future majority will have no motivation to take a less majoritarian approach. Onward!