— Harry Reid is promising to go nuclear in January. The Senate majority leader says he will attempt a controversial procedure on the first day of the new Congress to limit the use of the filibuster by Republicans.
Bravo, you may be thinking. The filibuster has surely been abused in recent years, keeping many a worthy bill from becoming law and dozens of presidential nominees from getting confirmed. Still, Reid and his Democratic colleagues should be careful what they wish for. Sure as the tides roll in and out, Democrats will be in the minority again. Tying Republican hands today means tying their own hands later.
Reid has three changes in mind, all of which seem modest. Instead of requiring 60 votes to begin debating a bill, Reid wants to be able to start with just 51 votes. He wants to be able to send Senate-passed bills to conference with the House using the same simple majority instead of having to round up two-thirds of the Senate (a next-to-impossible 67 votes). And he wants senators to filibuster the old-fashioned way — by standing on the floor, talking nonstop until they give up or a supermajority votes to shut them up.
Senators for decades have sought to reduce the filibuster threat once they're in the majority. In 1975, the Senate lowered to 60 from 67 the number of votes needed to pre-emptively cut off a filibuster through a procedure known as cloture. There are exceptions: Senate rule changes still require 67 votes, as do motions to send bills to a House-Senate conference.
In 2005, when Republicans controlled the Senate, they threatened to push through a rule change to cut off Democratic filibusters of President George W. Bush's judicial nominees. In retaliation, Democrats said they would block all Senate business and essentially shut down the chamber. The situation was defused when a so-called Gang of 14 — seven senators from each party — agreed to end filibusters of judicial nominees except in extraordinary circumstances.
Seven years later, the filibuster is more potent than ever. Democrats say that, since taking control of the Senate in 2007, they've had to deal with Republican filibuster threats (no one actually filibusters anymore, they just threaten to) almost 400 times, rendering the chamber dysfunctional. When Lyndon B. Johnson led the Senate in the 1960s, he faced only one filibuster. Frustrated liberal interest groups have sued, alleging that filibusters violate the principle of majority rule and therefore are unconstitutional. A hearing on the lawsuit --a long shot — was held this week in U.S. District Court for the District of Columbia.
Now come Reid and a band of reform-minded senators with another idea: They contend that the Constitution allows the presiding officer (Vice President Joe Biden), on the first day of a new Congress, to declare that a simple majority of the Senate can end debate on a rule change. Their legal rationale, and on this point they are probably correct, is that unless the Constitution specifies a supermajority (which it doesn't), a simple majority suffices to alter Senate rules.
Reid insists he's not ending the filibuster — Republicans could still mount a talkathon to stop a final vote on anything — but merely wants to make the Senate more efficient. If he is successful, just the threat of more changes to filibuster rights could be enough to keep the minority in line.
At any rate, Republicans say Reid's nuclear option would run roughshod over existing rules and centuries of tradition in which procedural changes required bipartisan agreement.
With 53 Democratic senators and two independents promising to caucus with the majority, Reid appears to have numbers on his side. Yet even some Democrats aren't convinced he is right. They worry that ramming this down Republicans' throats would drive them to retaliate by going on strike. It could also upend any chance of bipartisan cooperation in President Barack Obama's second term. As Sen. Claire McCaskill, a Missouri Democrat, put it, "We are playing with nitroglycerin here." We agree.
It's important to remember that there are two sides to this story. The reason Republicans force Reid to round up 60 yes votes, even on mundane matters, is that he, like majority leaders before him, runs the Senate as a satrapy. He alone decides what legislation to bring to the floor, and when. He also routinely denies the minority the right to amend legislation. To fight back, Republicans threaten to block the Senate's ability to take up measures. Reid's proposed changes would prevent this.
What both sides need is a cease-fire. Republicans, for example, could agree to let Democrats open debate or form conference committees with 51 votes so that the Senate wastes less time. In return, Democrats could agree to give the minority at least a minimum of floor time to amend legislation, as long as the amendments are germane.
To reduce the sheer number of filibuster threats, both sides could agree to require potential talkers to have the support of at least 40 other senators to keep a blockade going, or else a simple majority could shut it down. The filibuster burden, which now rests with the majority to stop by rounding up 60 cloture votes, would switch to the minority, which would have to prove it has the 41 votes to keep going. And while lawmakers are at it, they should all agree to ban the use of "holds," the secretive process in which a lone senator can stop a presidential nominee or legislation without leaving any fingerprints.
When Republicans contemplated the nuclear option in 2005, a senior Democrat said it was "ultimately an example of the arrogance of power." Those were the words of then-Senator Joe Biden. He was right then, and he's right now.