With the “fiscal cliff” averted, the Democratic Senate will turn its attention to attacking the filibuster. I wrote about this issue here. As I explained:
Republicans alone cannot prevent the Democrats from changing the Senate rules pertaining to the filibuster. In theory they can because under Senate rules any rule change requires a two-thirds majority. However, the Democrats apparently intend to violate that rule by pretending, contrary to what the rules say, that Senate rules do not continue in operation from one Congress to the next.
Thus, next month [January 2013], at the very beginning of the 113th Congress, Harry Reid is expected to claim that there are no Senate rules yet. He will then move to adopt a rule by which cloture can be invoked by a simple majority, instead of a super-majority of 60 votes. And he will claim that this new rule can be passed by a simple majority. Reid can then effectuate his change to the filibuster rules without a single Republican vote, and can even afford to lose a few Democrats.
Hoping to head off this move, a bipartisan group of senators has suggested changes to Senate procedural rules that they hope will cause anti-filibuster Democrats to back away from the “nuclear option” described above. Eight Senators are involved, four Democrats — Carl Levin, Chuck Schumer, Mark Pryor, and Ben Cardin — and four Republicans — John McCain, Lamar Alexander, Jon Kyl (who won’t be part of the new Senate), and John Barrasso.
In essence, their proposal would would allow the majority leader to avoid the filibuster on motions to proceed. In other words, the filibuster would no longer be available at the front-end to prevent consideration of legislation. In exchange, the minority would be guaranteed the ability to offer at least some amendments. Currently, Harry Reid routinely blocks amendments through a practice known as “filling the tree.”
The compromise would also include other adjustments designed to favor Democrats (for now) and to make Harry Reid’s job easier. Filibusters wouldn’t be available to prevent legislation from going to conference or to block some presidential nominations. In addition, more effort would be required of those conducting a filibuster. Under modern practice, a Senator can “filibuster” without appearing on the Senate floor.
The proposed changes aren’t unreasonable on the merits. But neither were they unreasonable on the merits when Republicans controlled the Senate, and Democrats used the filibuster in the same ways they find so intolerable now.
The real argument for the Gang of 8 proposal is to head off the “nuclear option,” which would pave the way for the Senate to pass all sorts of lefty legislation — e.g., card check, amnesty for illegal immigrants, onerous environmental laws, and “civil rights” legislation that further erodes the ability of employers to hire and promote based on merit rather than race. That’s why a broad coalition of nearly 50 left-wing and labor organizations responded with howls to the compromise filibuster proposal.
Left-wing howls notwithstanding, I suspect that a compromise along the lines proposed by the Levin-McCain group will be adopted. Reid knows that any legislation he rams through under the nuclear option will be dead on arrival in the Republican House. So I expect him to take, for now, what McCain and the others are offering and save the nuclear option for 2015, if the 2014 elections go his way.
UPDATE: Politico reports that Harry Reid will delay until later this month the decision on whether to go “nuclear.” He will do so through a “circuitous procedure” that purports to keep the Senate in its “opening legislative day” until he decides what to do about the filibuster.
By Reid’s standard of running the Senate, the non-filibuster filibuster is one of its more logical procedures.
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