Ever since Senate rules were last changed in 1917, the filibuster has transformed from the occasionally used tool to block egregiously extreme legislation to a regularly used tactic to grind Congress to a screeching halt. Just take a look at how slowly the Senate must operate now. Is this really how Congress is supposed to function?
Take a look at this chart [featured at the above link] on the growth in the number of filibusters since the Senate changed its rules in 1917.
The chart is based on an updated table the Senate keeps, chronicling cloture votes over the last nine decades, using three metrics: (1) cloture motions filed (when the majority begins to end a filibuster); (2) votes on cloture (when the majority tries to end a filibuster); and (3) the number of times cloture was invoked (when the majority succeeds in ending a filibuster). By all three measures, obstructionism soared over the last six years as Republicans abused the rules like no other party or caucus in American history.
You'll notice a sharp drop in the number of filibusters in the most recent Congress. While that might suggest signs of progress to some, it's not -- the drop only came as a result of the GOP-led House passing far-right bills the Senate didn't care to pass. And even despite this fact, the 112th Congress saw the third most filibusters of any Congress in the 223 years the Senate has existed.
In case this isn't obvious, the Senate wasn't designed to work this way; it didn't use to work this way; and by any credible measure, it can't work this way -- which is why there's so much talk of reforms next year.
And now, the moment is finally arriving. Filibuster reform is coming... Or is it? The final answer may very well depend on Senate Minority Leader Mitch McConnell's (R-Kentucky) next move.
Right now, the majority needs to supply the 60 votes to break a filibuster. The minority only needs one vote on the floor. Under Reid’s backup plan, the burden would be reversed: The minority would have to supply the 41 votes required to keep a filibuster going, while the majority wouldn’t have to do much of anything. That means that if the minority only had 38 votes present in the room, the filibuster would end. It also means the minority could be forced to muster all their people to vote at times of the majority leader’s choosing: say, 3 a.m. on a Saturday. It would make filibustering a much more unpleasant experience.
In that way, it satisfies a central priority of the Merkley-Udall talking filibuster, in that it forces the minority to actually put some work into filibustering. As Sen. Amy Klobuchar (D-Minn.) told me in the New Yorker: "Some of these people who put in these filibusters simply object and go home for the weekend. We think we need to inconvenience them."Even Merkley is supportive. "I think switching from 60 to 41 would be very valuable," he told Slate.
But the 41-vote policy is not Reid’s preference, and presumably, it’s not McConnell’s, either. It would also mean that Senate Republicans could go nuclear in response, shutting everything down. It would also, interestingly, mean House Republicans could go nuclear. House Speaker John A. Boehner’s office released a statement saying that “Any bill that reaches a Republican-led House based on Senate Democrats' heavy-handed power play would be dead on arrival.” Reid would, all things considered, prefer to avoid that particular showdown. So his hope is that the threat of the 41-vote change leads McConnell to accept his package of more limited reforms. It’s only if McConnell walks that Reid will pick that fight.
Several Senators on both sides of the aisle are leery of doing away with the filibuster... Or even tweaking with it too much. After all, under the current system one Senator has the power to derail an entire party's legislative agenda. And today's majority may become tomorrow's minority.
Hardly anyone truly wants to institute "tyranny of the majority". But by the same token, most Americans have become so frustrated with the wreckless stonewalling of the minority. It's one of many reasons why Congress is so unpopular now.
And this is why the growing chorus of reformers in the Senate want real, dramatic change to the filibuster and how it's conducted. At this point, they may finally be getting at least some of their wishes. Reid looks to be ready to make his final move.
[Senator Dick] Durbin [D-Illinois] said he’d prefer to reach a bipartisan agreement. But he said there is precedent for using the constitutional option and that although he’d hate to go go that route, “if we have to to get the Senate working again, I support it.”
Do they have the votes to do it? “Yes,” Durbin said.
Reid reiterated his ultimatum to McConnell to make a deal or watch Democrats go it alone.
“I am not going to negotiate things here,” Reid said. “Senator McConnell and I are talking. The point is this: we’re going to change how we do business around here. We can do it the easy way or the hard way, but it’s going to change.”
And it must if Reid wants to move on immigration reform, climate change, gun safety, and/or any of the other issues that President Obama mentioned in his Second Inaugural Speech. So the clock is now ticking. Will the Senate finally take a big step towards becoming fully functional again?