The Senate filibuster is all but dead come 2013. On Friday, Senate Majority Harry Reid told Ed Schultz that he promises to pass filibuster reform should the Democrats retain the control of the Senate and President Obama wins re-election. Reid will also support filibuster reform if he should find the Democrats in the Senate's minority come next year.
So it seems that either the Democrats will reform the filibuster when new rules are taken up on the first day of the 213th Senate by a simple majority vote, or the Republicans will do the same or use reconciliation to their advantage.
The Washington Post has a partial transcript of Reid's remarks:
REID: They’re just trying to kill this bill, as they’ve killed scores of other bills we’ve had because they’re filibustering. They’re filibustering until we have to change the rules. We can’t go on like this anymore. I don’t want to get rid of the filibuster, but I have to tell you, I want to change the rules and make the filibuster meaningful. The filibuster is not part of our constitution, it came about as a result of our wanting to get legislation passed, and now it’s being used to stop legislation from passing.
SCHULTZ: But you’d change the rules…
REID: Oh, we could have done it in the last Congress. But I got on the Senate floor and said that I made a mistake and I should have helped with that. It can be done if Obama is re-elected, and I can still do it if I have a majority, we can do it with a simple majority at the beginning of the next Congress.
SCHULTZ: Think the President will go along with that?
REID: You damn betcha.
Senate minority leader Mitch McConnell asked, through his spokesman, if Reid's position would change should the Democrats lose control of the Senate this November.
We’re always curious if those who want to limit the rights if the minority are willing to live by the same rules they’re calling for now. Will they refuse the filibuster?
The answer would still be yes, according to Reid's spokesman, Adam Jentleson:
He’d still advocate for his position, he just wouldn’t be in a position to do anything about it unless a bunch of Republicans suddenly have a change of heart. His position won’t change. He’s convinced of the need for change.
Reid, I think, understands the filibuster is doomed if the Republicans win control anyways, so it is a simple calculation to agree to reform win or lose. The filibuster has been on the brink of obsolescence for the past decade. The Republican's abuse of filibuster may have driven the wooden stake through its heart. James Fallows has been writing at
The Atlantic about "
nullification", pointing out last December that:
Some day, maybe starting a year from now, the Democrats will be back in the minority. And they will have two choices:
- They can do what the McConnell Republicans have done and filibuster everything and everyone, which would be "smart" for them but terrible for the country.
- Or they can not do that, which will be terrible for "their side" in partisan disagreements.
It's lose-lose, and it is the natural but destructive consequence of choices these past few years.
By backing filibuster reform now, Reid may be trying to transform the lose-lose into a potential win. The Senate Republicans are not going to let the filibuster be used against them as a majority party. With a Republican victory in the Senate, they will flood the airwaves with cries of returning the "Senate to majority rule" and eliminating the "tyranny of the minority"
"The congressional Republican strategy—disgraceful but successful—of opposing Obama on everything has largely worked," Michael Tomasky wrote. The Republicans' calculation depending on holding on to the filibuster just long enough to thwart President Obama's agenda and hope to gain control of Congress. They won the House in 2010 and may be set to win the Senate this November.
Back in 2010, Senate Republicans had to stave off Democratic proposals to reform the filibuster. McConnell's January 2011 op-ed in the Washington Post attacked filibuster reform as "power grab" by the Democrats. McConnell concern-trolled:
For two years, Democrats in Congress have hoped their large majorities would make it easy for them to pass extremely partisan legislation. Now that they've lost an election, they've decided to change the rules rather than change their behavior. They should resist the impulse. Democrats should reflect on what they have done to alienate voters, not double down on the approach that got them here.
Writing in 2010 for
The American Prospect, Matthew Yglesias predicted that
McConnell will neuter the filibuster if the Republicans should seize control of the Senate:
The Senate's been in a downward spiral of increasing obstruction for years now. Does anyone really think a Republican majority would put up with Democrats dishing out what they've been taking? The next Democratic minority will either constrain itself or else will have the rules changed on it. The current dynamic is unsustainable. The only real question is whether Democrats will have the guts to turn it around this winter or if reform will have to wait until the right takes charge.
McConnell
dared Reid to reform the filibuster in 2011.
A change in the rules by a bare majority aimed at benefiting Democrats today could just as easily be used to benefit Republicans tomorrow. Do Democrats really want to create a situation where, two or four or six years from now, they are suddenly powerless to prevent Republicans from overturning legislation they themselves worked so hard to enact?
Because McConnell knew if the Democrats kept the filibuster in 2011-2013, it would be almost impossible for Reid to implement the Democratic legislative agenda. McConnell threatened in letter to Reid that the Republicans will
filibuster everything.
"[W]e write to inform you that we will not agree to invoke cloture on the motion to proceed to any legislative item until the Senate has acted to fund the government and we have prevented the tax increase that is currently awaiting all American taxpayers."
McConnell and his fellow Senate Republicans would not be reform the filibuster as "losers" trying to hold on to power, but as the new majority party laying down the law.
Even if the filibuster remains as-is with a Republican Senate, Yglesias argued last month that the Republicans are more inclined to use the reconciliation process if the Democrats attempt to filibuster their legislative priorities. The Republicans will be especially emboldened if they win the Senate and Mitt Romney finds a way to buy the presidency.
Whatever the outcome of this November's election, it seems unlikely that the Senate will see a repeat performance of the filibuster as we've come to know it.